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THE  PRACTICE  OF  DIPLOMACY.  Large 
crown  8vo,  $3.00,  nei.     Postage  20  cents. 

ARBITRATION  AND  THE  HAGUE  COURT. 
Crown  8vo,  $1.00,  net.     Postpaid,  Ji.og. 

AMERICAN  DIPLOMACY  IN  THE  ORIENT. 
8vo,  1(13.00,  net.     Postpaid,  $3.20. 

A  CENTURY  OF  AMERICAN  DIPLOMACY- 
Being  a  Brief  Review  of  the  Foreign  Rela- 
tions of  the  United  States,  1776-1876.  With 
maps.     8vo,  ^3.50. 

HOUGHTON,  MIFFLIN  &  CO. 

Boston  and  New  York. 


THE   PRACTICE   OF   DIPLOMACY 


THE 

PRACTICE  OF  DIPLOMACY 

AS  ILLUSTRATED  IN 

THE  FOREIGN  RELATIONS  OF 

THE  UNITED  STATES 

BY 

JOHN  W.  FOSTER 

Author  of  "  A  Century  of  A  merican  Diplomacy,'^ 
*' American  Diplomacy  in  the  Orient,"  etc. 


»  ->  «    »   • 


BOSTON  AND  NEW  YORK! 
HOUGHTON,   MIFFLIN  AND  COMPANY 

1906 


■4  -f.   *'>  •" 


llSit    ■:.. 


COPYRIGHT  1906  BY  JOHN  W.  FOSTER 
ALL   RIGHTS   RESERVED 

Published  November,  igob 


tic 


a 

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,  n  p,  r. 


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PREFACE 

It  has  not  been  the  purpose  to  make  this  work  a  man- 
ual of  diplomatic  procedure,  that  field  being  already- 
occupied  by  European  pubhcations.  It  is  rather  designed 
as  a  companion  volume  and  complement  of  "  A  Century 
of  American  Diplomacy."   As  the  latter  sought  to  show 

w       the  influence  exerted  by  the  United  States  in  the  fram- 
es •' 

""*  ing  and  improvement  of  international  law,  the  present 
^  work  is  intended,  primarily,  to  set  forth  the  part  taken 
•H  by  American  diplomatists  in  the  elevation  and  purifica- 
tion of  diplomacy  ;  and,  secondarily,  to  give  in  popular 
form,  through  such  a  narrative,  the  rules  and  procedure 
of  diplomatic  intercourse.  While  it  is  prepared  for  the 
^,  general  reader,  numerous  citations  of  authorities  are 
given  to  enable  the  student  to  pursue  his  investigation 
by  an  examination  of  the  original  sources  of  inform- 
ation. j\]  \  \ 


CONTENTS 

I.  Utility  of  the  Diplomatic  Service     .        .        .        .      l- 
A^I.  Rank  of  Diplomatic  Representatives     ...        15 

i^II.   The  Appointment  of  Diplomats 34 

W^.  The  Reception  of  Envoys 55 

V.  Duties  of  a  Diplomat  —  to  his  Own  Government    .    74 
VI.   Duties  of  a  Diplomat  —  to  the  Foreign  Govern- 
ment        103 

VII.  Court  Dress,  Decorations,  and  Presents        .        .      130 

VIII.  Immunities  of  Diplomats 159 

IX.  The  Termination  of  Missions 175 

X.   Other  Diplomatic  Officials 192 

XI.   The  Consular  Service 216 

XII.   Negotiation  and  Framing  of  Treaties        .        .        .  243  l/ 

XIII.  Ratification  of  Treaties 262 

XIV.  Interpretation  of  Treaties 284 

XV.   Termination  of  Treaties 298 

XVI.   Compacts  other  than  Treaties 312 

XVII.  Arbitration  and  its  Procedure        ....      330 

XVIII.   International  Claims     .        .' 359 

Bibliography 383 

Index 389 


THE   PRACTICE   OF  DIPLOMACY 


CHAPTER  I 

UTILITY    OF   THE    DIPLOMATIC    SERVICE 

In  a  previous  volume  I  sought  to  show  that  the  United 
States,  in  the  first  hundred  years  of  its  existence,  has 
had  a  marked  influence  in  shaping  and  improving  inter- 
national law.  Its  influence  in  elevating  the  diplomatic 
intercourse  of  nations  has  been  scarcely  less  conspicu- 
ous. Our  first  plenipotentiary  was  distinguished  for  the 
frankness  and  simplicity  of  his  conduct,  and  for  his 
advanced  and  humane  political  views ;  our  first  Presi- 
dent enjoined  upon  our  foreign  representatives  high 
ideals  and  the  avoidance  of  chicanery ;  and  the  last 
among  our  secretaries  of  state,  whose  lamented  death  is 
yet  fresh  in  our  memories,  epitomized  the  diplomacy  of 
the  United  States  as  the  practical  application  of  the 
Golden  Rule. 

The  fact  that  the  United  States  began  its  career  as 
an  independent  state  with  no  national  history  behind 
it,  and  untrammeled  by  precedents  and  traditions,  made 
it  easier  for  its  foreign  agents  to  discard  the  devious 
methods  of  the  then  existing  diplomacy,  and  to  follow 
a  more  sincere  and  upright  course.  It  was  fortunate, 
also,  that  its  earliest  representatives  to  foreign  courts 


2  THE   PRACTICE  OF  DIPLOMACY 

were  men  of  the  first  order  of  talents  and  of  the  highest 
character.  Frankhn  and  Jefferson  at  Paris,  Adams  and 
Gouverneur  Morris  at  London,  and  Jay  and  Pinckney 
at  Madrid,  were  unsurpassed  among  their  contempora- 
ries in  any  land  for  intellectual  attainments  and  states- 
manship. They  were  well  fitted  to  inaugurate  the 
diplomatic  service  of  the  new  republic. 

It  will  be  the  purpose  of  this  volume  to  set  forth  the 
character  of  that  service,  to  describe  in  some  detail  its 
methods  and  duties,  and  to  record  the  achievements  and 
mistakes  of  American  diplomats  abroad. 

International  law  is  of  modern  origin  and  recent 
growth,  the  attempt  at  its  codification  dating  from  the 
seventeenth  century  only,  and  it  scarcely  came  to  be 
recognized  as  binding  upon  nations  before  the  nine- 
teenth ;  but  the  practice  of  sending  and  receiving  am- 
bassadors or  diplomatic  representatives  has  existed  among 
nations  from  the  earliest  recorded  history.  The  ancient 
Egyptians  are  known  to  have  frequently  observed  the 
practice ;  early  biblical  history  contains  references  to 
the  custom;  it  was  quite  common  among  the  Greek 
states ;  and  observed  by  Rome  during  both  the  Republic 
and  the  Empire. 

But  in  all  these  cases  and  during  the  early  period  of 
modern  European  nations  embassies  or  missions  were 
used  on  special  or  extraordinary  occasions  only,  and 
were  of  a  temporary  character.  Not  until  late  in  the 
fifteenth  century  did  the  diplomatic  service  become  per- 
manent in  its  character  and  the  governments  establish 
resident  missions  or  embassies.  This  stage  of  organized 
growth  was  reached,  however,  a  century  and  a  half 


UTILITY  OF  THE  DIPLOMATIC   SERVICE  3 

before  Grotius  began  the  task  of  giving  shape  and 
authority  to  international  law.  Nevertheless,  the  rights 
and  duties  of  diplomatic  representatives  were  at  that 
period  imperfectly  defined.  The  great  congresses  or 
conferences  following  the  long  wars  of  the  European 
powers,  such  as  those  of  Westphalia,  Ryswick,  and 
Utrecht,  had  a  marked  influence  in  fixing  more  accu- 
rately their  status;  but  not  until  the  Congress  of 
Vienna  in  1815,  at  the  close  of  the  Napoleonic  wars, 
did  the  grade  of  ambassadors  and  ministers  become 
authoritatively  established. 

The  United  States,  when  it  entered  the  family  of 
nations,  accepted  the  existing  practice,  and  has  main- 
tained a  diplomatic  service  similar  to  that  of  the  Euro- 
pean countries.  But  the  question  has  often  been  raised, 
in  and  out  of  Congress,  whether  or  not,  in  the  existing 
conditions  of  the  world,  the  system  is  necessary  and 
whether  its  utility  justifies  its  expense.  As  early  as 
1783,  John  Adams,  who  had  just  participated  in  the 
negotiation  of  the  treaty  of  peace  and  independence, 
wrote  Mr.  Livingston,  the  Continental  Secretary  of 
Foreio^n  Affairs:  "I  confess  I  have  sometimes  thouo^ht 
that  after  a  few  years  it  will  be  the  best  thing  we  can 
do  to  recall  every  minister  from  Europe,  and  send  em- 
bassies only  on  special  occasions."  ^ 

It  is  claimed  that,  with  the  present  development  of 
steam  communication,  the  rapid  transmission  of  intelli- 
gence by  electricity,  and  the  general  diffusion  of  news 
by  the  press,  diplomatic  negotiations  and  correspond- 

*  8  The  Works  of  John  Adams,  edited  by  Charles  Francis  Adams 
(1853),  37. 


4  THE  PRACTICE  OF  DIPLOMACY 

ence  might  readily  be  carried  on  directly  between  the 
foreign  offices  of  the  various  governments,  that  the 
interests  of  our  citizens  might  be  attended  to  by  con- 
suls, and  that  on  extraordinary  occasions  the  business 
might  be  intrusted  to  special  temporary  missions.  With 
many  in  our  country  the  diplomatic  service  is  regarded 
as  hardly  more  than  a  showy  appendage  of  the  gov- 
ernment, and  its  maintenance  a  useless  expenditure  of 
public  money.  Whenever  the  question  has  been  made 
the  subject  of  inquiry  by  Congress,  the  various  presi- 
dents and  secretaries  of  state  have  given  their  opinion 
in  favor  of  the  utility  and  necessity  of  the  service,  and 
Congress  has  continued  to  authorize  it.  The  controlling 
judgment  is  well  expressed  in  the  language  of  Secre- 
tary Frelinghuysen  to  Congress :  "  Diplomatic  repre- 
sentation is  a  definite  factor  in  the  political  economy 
of  the  world;  and  no  better  scheme  has  yet  been 
devised  for  the  dispatch  of  international  affairs,  or  for 
the  preservation  of  friendly  relations  between  govern- 
ments." ^  President  Harrison,  after  his  retirement  from 
public  life,  left  on  record  his  view  of  it  as  follows  :  — 

"  The  diplomatic  service  has  sometimes  been  assailed 
in  Congress  as  a  purely  ornamental  one ;  and  while  the 
evident  necessity  of  maintaining  the  service  is  such  as 
ought  to  save  it  from  the  destructionists,  it  is  quite  true 
that  our  diplomatic  relations  with  some  of  the  powers 
is  more  ceremonious  than  practical.  But  we  must  be 
equipped  for  emergencies,  and  every  now  and  then, 
even  at  the  smallest  and  most  remote  courts,  there  is  a 

>  House  of  Reps.  Executive  Document  No.  146,  48th  Congress,  1st 
Session,  p.  1. 


UTILITY  OF  THE  DIPLOMATIC   SERVICE  5 

critical  need  of  an  American  representative  to  protect 
American  citizens  or  American  interests."  ^ 

This  subject  was  some  years  ago  considered  by  a 
special  committee  of  the  Parliament  of  Great  Britain. 
Lord  Palmerston,  the  prime  minister  and  the  best  in- 
formed and  the  most  experienced  statesman  of  his  day 
in  international  affairs,  was  examined.  John  Bright  put 
to  him  the  question  "  whether  it  would  not  be  practica- 
ble to  transact  the  ordinary  business  by  means  of  writ- 
ten communications  between  the  two  foreign  offices,  and 
when  anything  arose  requiring  particular  attention  to 
have  a  special  mission  of  some  member  of  the  cabinet?" 
Lord  Palmerston  replied,  "  I  do  not  think  it  would," 
and  he  proceeded  to  give  the  reasons  for  his  belief. 

Mr.  Cobden  propounded  the  following :  "  If  you  go 
back  two  or  three  hundred  years,  when  there  were  no 
newspapers,  when  there  was  scarcely  such  a  thing  as 
international  postal  communication,  when  affairs  of  state 
turned  upon  a  court  intrigue,  or  the  caprice  of  a  mis- 
tress, or  a  Pope's  bull,  or  a  marriage,  was  it  not  of  a 
great  deal  more  consequence  at  that  time  to  have  min- 
isters at  foreign  courts  .  .  .  than  it  is  in  these  constitu- 
tional times,  when  affairs  of  state  are  discussed  in  the 
public  newspapers  and  in  the  legislative  assemblies  .  .  . 
under  these  circumstances  are  not  the  functions  of  an 
ambassador  less  important  now  than  they  were  two  or 
three  hundred  years  ago?" 

Lord  Palmerston  replied  :  "  I  should  humbly  conceive 
that  they  are  more  important  on  account  of  the  very 
circumstances  which  have  just  been  stated.  ...  I  should 

^  This  Country  of  Ours,  Benjamin  Harrison,  196. 


6  THE  PRACTICE  OF  DIPLOMACY 

think  that  the  change  which  has  taken  place  with  re- 
gard to  the  transaction  of  public  affairs  in  Europe  tends 
to  make  diplomatic  agents  of  more  importance  rather 
than  of  less  importance."  ^ 

One  reason  why  the  value  and  importance  of  the 
V    {diplomatic  service  is  not  readily  recognized  is  because 
its  work  is  carried  on  quietly  and  usually  without  the 
['knowledge  of  the  public.    It  is  almost  always  the  hand- 
Imaid  of  peace  and  good-will.    Very  many  more  inter- 
national controversies  are  settled  by  the  unobtrusive  or 
secret  methods  of  diplomacy,  than  by  either  arbitration 
or  war.    The  English  historian,  Goldwin  Smith,  states 
that  Lord  Stratford  de  Redcliffe,  ambassador  at  Constan- 
tinople, piqued  because  he  had  been  rejected  as  ambas- 
sador at  St.  Petersburg,  was  in  large  measure  responsible 
for  the  Crimean  War,  which  involved  questions  suscep- 
tible of  a  friendly  settlement.^   But  such  instances  are 
rare,  and  make  more  conspicuous  the  ordinarily  peaceful 
methods  of  diplomacy. 

Secretary  Frelinghuysen,  in  the  communication  to 
Congress  from  which  an  extract  has  already  been  made, 
in  discussing  the  utility  of  the  service  says :  "  The  suc- 
cesses of  diplomacy  are  usually  known  but  to  a  few, 
which,  perhaps  not  unnaturally,  has  led  to  the  behef, 
held  by  many,  that  with  the  introduction  of  the  steam- 
ship and  the  telegraph  the  duties  of  a  minister  have 
ceased.  However  fast  the  mail  or  ef&cient  the  telegraph, 
neither  can  ever  supply  the  place  of  the  diplomatic 
agent  who  advises  his  government  of  the  disposition  of 

1  Senate  Executive  Document  No.  93,  32d  Congress,  1st  Sess.,  9. 

2  New  York  Independent,  December  28,  1905. 


UTILITY  OF  THE  DIPLOMATIC   SERVICE  7 

the  other,  and  conducts  the  personal  negotiations,  under 
general  instructions  from  home.  The  government  can 
only  outline  the  policy  ;  it  is  for  the  agent  to  accomplish 
the  end  sought."  ^ 

The  cost  of  the  diplomatic  service  of  the  United 
States  cannot  be  urged  as  a  reason  for  its  discontinu- 
ance or  curtailment,  as  no  other  department  of  the  gov- 
ernment is  conducted  with  so  small  an  expenditure,  and 
no  other  can  show  greater  results  for  the  number  of 
officials  employed  or  the  expenses  incurred.  The  diplo- 
matic representative  is  preeminently  a  peacemaker,  and 
if  he  can  through  his  efforts  postpone  a  great  war,  or 
shorten  it  by  a  single  day,  he  will  save  to  the  public 
treasury  much  more  than  the  cost  to  the  United  States 
of  its  diplomatic  establishment  for  an  entire  year,  with- 
out taking  into  account  the  loss  of  life  and  the  destruc- 
tion of  property. 

While  the  United  States  has  adopted  the  European 
system  of  a  diplomatic  service,  in  one  important  particu-  ^ 
lar  our  government  has  not  followed  the  general  prac- 1 
tice  of  other  nations.  In  most  civilized  countries  this 
service  is  now  made  a  life  career,  and  admission  to  it  is 
through  the  lowest  grades  by  means  of  an  examination, 
which  is  usually  competitive  in  its  character.  Young 
men  are  expected  to  pursue  a  preparatory  course  of 
study,  and  are  required  to  be  examined  upon  a  pre- 
scribed list  of  topics  framed  with  special  reference  to 
the  duties  of  the  service ;  when  once  admitted  they  are 
regularly  advanced  through  the  several  grades,  if  they 
show  by  their  proficiency  and  good  conduct  that  they 

1  H.  Ex.  Doc.  146,  48tli  Cong.,  1st  Sess.,  2. 


8  THE  PRACTICE  OF  DIPLOMACY 

are  deserving  of  promotion ;  and  after  a  long  term  of 
service  they  are,  in  many  countries,  retired  on  a  pen- 
sion. Such  a  system,  though  advocated  by  many  per- 
sons who  are  urging  improved  methods  in  the  public 
service,  has  never  been  adopted  by  our  government. 
No  examination  has  been  required  for  admission  to  the 
diplomatic  service  of  the  United  States  either  as  secre- 
tary, minister,  or  ambassador.  Appointments  have  been 
made  of  persons  usually  from  civil  life  and  without  any 
previous  diplomatic  experience.  The  two  systems  have 
their  advantages.  The  regular  career  insures  secretaries 
fitted  for  their  positions  and  ministers  trained  through 
a  long  series  of  years,  and  if  endowed  with  ability  and 
a  proper  temperament  they  are  the  more  useful  public 
servants  because  of  their  training  and  experience.  But 
it  does  not  necessarily  follow  that  because  a  young  man 
can  pass  a  successful  examination  he  is  destined  to  make 
an  able  minister  or  ambassador.  This  has  so  often  proved 
true  in  practice  that  the  British  and  other  governments 
have  frequently  found  it  necessary  to  appoint  to  the 
highest  post  in  the  diplomatic  service  persons  from 
other  branches  of  the  government  or  from  civil  life. 
The  three  most  prominent  and  efficient  diplomatic  repre- 
sentatives of  the  British  government  during  the  last 
quarter  of  the  nineteenth  century  were  Lords  Dufferin, 
Pauncefote,  and  Cromer,  none  of  whom  was  trained  for 
the  diplomatic  service,  but  entered  it  in  mature  years 
from  other  branches  of  the  (government. 

The  trained  diplomatic  career  has  had  many  advo- 
cates in  the  United  States,  and  it  has  often  been  dis- 
cussed  in  the  executive  and   legislative  departments. 


UTILITY  OF  THE  DIPLOMATIC   SERVICE  9 

John  Adams,  who  entertained  a  low  estimate  of  the 
morals  and  efficiency  of  the  service  of  the  European 
governments  of  his  day,  expressed  his  view  of  the 
question  as  follows  :  — 

"  It  is  very  true,  that  it  is  possible  that  a  case  may 
happen,  that  a  man  may  serve  his  country  by  a  bribe 
well  placed,  or  an  intrigue  of  pleasure  with  a  woman. 
...  It  is  very  certain  that  we  shall  never  be  a  match 
for  European  statesmen  in  such  accomplishments  for 
negotiations,  any  more  than,  I  must  and  will  add,  they 
will  equal  us  in  any  solid  abilities,  virtues,  and  applica- 
tion to  business,  if  we  choose  wisely  among  the  excel- 
lent characters  with  which  our  country  abounds."^ 

The  advocates  of  a  competitive  examination  and  a 
permanent  tenure  of  office  have  stated  their  case  with 
some  fullness  in  the  report  of  a  Senate  committee, 
especially  designated  in  1868,  to  study  the  subject,  from 
which  the  following  extract  is  made  :  — 

"  The  want  of  our  foreign  service  is  special  knowledge 
and  experience  on  the  part  of  those  who  enter  it  as 
officials.  Under  our  present  system,  consular  and  diplo- 
matic agents  are  selected  without  regard  to  their  quali- 
fications. As  a  rule,  those  appointments  are  bestowed  as 
a  reward  or  inducement  to  political  service  rather  than 
to  secure,  in  the  interests  of  trade  and  diplomacy,  the 
best  ability  which  the  country  affords.  Not  one  tenth 
of  the  whole  number  of  appointees  are  conversant  with 
the  language,  geography,  laws,  political  economy,  or 
material  resources  of  the  countries  to  which  they  are 
accredited.  .  .  . 

1  8  Works  of  John  Adams,  39. 


10  THE  PRACTICE  OF  DIPLOMACY 

"  The  tenure  of  office,  too,  is  so  brief  and  uncertain 
that  there  can  be  but  little  esprit  de  corps  in  the  service. 
The  effort  necessary  to  acquire  professional  excellence 
or  to  complete  difficult  and  protracted  public  service 
will  rarely  be  made  without  stronger  motives.  Contin- 
uance is  necessary  to  usefulness  in  office  under  our 
present  system  of  appointments.  No  man  can  pass  from 
other  pursuits  directly  into  the  higher  grades  of  diplo- 
matic and  consular  service  and  comprehend  clearly  the 
nature  and  scope  of  his  duties." 

The  bill  which  accompanied  the  report  provided  for 
admission  to  the  diplomatic  as  well  as  consular  service, 
by  means  of  a  competitive  examination,  and  made  the 
tenure  of  office  permanent.  The  committee  argued  that 
thus  "  a  man  who,  after  having  passed  his  examination, 
begins  his  diplomatic  career  as  attache,  rises  to  be 
secretary  of  legation,  and  is  gradually  advanced  until 
he  reaches  the  office  of  envoy  extraordinary  and  minister 
plenipotentiary,  has  passed  through  a  system  of  proba- 
tion, of  labor,  and  experience,  which  will  naturally 
enable  him  to  exercise  a  far-reaching  and  transcendent 
influence  abroad  and  at  home."  ^ 

No  definite  action  was  taken  upon  this  report,  and 
notwithstanding  various  similar  efforts  in  later  times, 
Congress  has  failed  to  adopt  any  measures  providing 
for  either  an  examination  or  a  permanent  tenure  of 
office.  A  recent  executive  order,  however,  has  been 
issued  by  the  President,  prescribing  that  vacancies  in  the 
office  of  secretary  of  embassies  or  legations  shall  here- 

1  Senator  Patterson's  Report,  July  2,1868,  S,  Rep.  No.  154, 40th  Cong., 
2d  Sess. 


UTILITY  OF  THE   DIPLOMATIC   SERVICE  11 

after  be  filled  (a)  by  transfer  or  promotion  from  some   , 
branch  of  the  foreign  service,  or  (b)  by  the  appointment 
of  a  person  selected  by  the  President,  if,  upon  examina- 
tion, he  be  found  qualified  for  the  position. 

The  examination  prescribed  is  to  be  conducted  by 
one  of  the  assistant  secretaries  of  state,  the  solicitor  of 
the  department  of  state,  and  the  chief  of  the  diplomatic 
bureau.  The  subjects  to  which  the  examination  shall 
relate  are  to  be  international  law,  diplomatic  usage,  and 
modern  languages;  and  familiarity  with  at  least  one 
foreign  language  will  be  required.^ 

This  executive  order  is  an  advance  over  any  previous 
method  of  filHng  the  lowest  grade  of  dij)lomatic  offices, 
but  it  has  a  serious  defect.  It  does  not  remove  admis- 
sion into  the  service  from  the  baneful  influence  of 
political  favoritism,  and  hence  offers  the  young  men  of 
the  country  little  encouragement  to  prepare  themselves 
for  the  diplomatic  career.  Besides,  this  executive  order 
is  not  binding  upon  a  succeeding  President,  and  without 
legislation  it  cannot  estabHsh  a  permanent  reform. 

In  recent  years  some  of  the  American  universities 
have  established  schools  of  diplomacy  and  politics  to 
enable  young  men  to  equip  themselves  for  the  foreign 
service,  as  also  to  make  them  better  fitted  to  dis- 
charge the  duties  of  citizens  at  home.  They  are  useful 
adjuncts  to  a  university  curriculum,  but  will  not  be 
largely  patronized  until  the  doors  of  access  to  the 
public  service  are  thrown  open  by  law  to  competitive 
examination. 

*  President's  order  for  appointment  of  secretaries  of  embassies  and     i  , 
legations,  November  10,  1905. 


12  THE  PRACTICE  OF  DIPLOMACY 

The  failure  of  Congress  to  legislate  respecting  the 
diplomatic  service  is,  in  part  at  least,  based  upon  what 
is  claimed  to  be  the  success  of  our  present  system.  It 
is  pointed  out  that  in  the  history  of  the  country  the 
soHd  achievements  of  American  diplomacy  equal  those 
of  any  European  nation,  and  that  we  do  not  suffer  by 
comparison  in  the  personnel  of  the  corps.  It  is  con- 
tended that  the  American  representatives  at  the  Euro- 
pean courts  have,  as  a  rule,  been  men  of  first  ability 
and  culture,  many  of  them  subsequently  filling  the 
posts  of  president,  chief  justice,  secretary  of  state, 
and  other  cabinet  offices,  and  highly  distinguished  at 
home  and  abroad ;  while  the  European  diplomats  sent 
to  Washington  have  scarcely  equaled  them  in  attain- 
ments and  distinction. 

The  fact  is  not  to  be  disguised,  however,  that  the  evil 
practice  of  rewarding  politicians  with  prominent  offices 
is  attended  with  consequences  demoralizing  to  the  ser- 
vice. Secretary  Hay,  referring  to  the  custom  of  appoint- 
ing to  foreign  missions  members  of  Congress  who  had 
been  defeated  for  reelection,  in  one  of  those  sallies  of 
wit  for  which  he  was  famous,  said  :  "  A  quiet  legation 
is  the  stuffed  mattress  which  the  political  acrobat  wants 
always  to  see  ready  under  him  in  case  of  a  slip."  ^ 
Favors  bestowed  solely  for  party  service  have  resulted 
occasionally  in  sending  abroad  as  diplomatic  representa- 
tives men  of  bad  manners  and  dissolute  habits,  who 
have  brought  the  service  into  ill  repute,  and  caused 
Americans  to  blush  for  their  country. 

Some  years  ago,  while  I  was  touring  with  a  party  of 

'  The  Century  Magazine,  January,  1906,  448. 


UTILITY  OF  THE  DIPLOMATIC   SERVICE  13 

friends  in  a  remote  section  of  the  Rocky  Mountains,  on 
a  Sunday  we  attended  service  in  a  Canadian  Presbyte- 
rian Church.  The  minister  in  illustrating  his  text  — 
"We  are  ambassadors  for  Christ"  —  stated  that  the 
United  States  had  at  one  time  an  ambassador  in  Ger- 
many who  was  almost  constantly  in  a  state  of  intoxi- 
cation. This,  he  said,  created  in  the  minds  of  the 
Germans  the  impression  that  the  Americans  must  be 
a  nation  of  drunkards.  One  of  the  successors  of  this 
representative  at  the  court  of  Berlin  has  recorded  that 
his  countrymen  at  that  capital  even  failed  to  keep  him 
sober  for  his  first  presentation  to  the  king.^ 

An  anecdote  is  told  of  Secretary  Seward  that  to  a'- 
citizen  who  was  remonstrating  with  him  against  con- 
tinuing in  the  service  a  minister  who  was  disgracing  his 
country  and  wondering  how  such  an  appointment  could 
be  made,  he  replied  :  "  Sir,  some  persons  are  sent  abroad 
because  they  are  needed  abroad,  and  some  are  sent 
because  they  are  not  wanted  at  home." 

Such  appointments  were  more  frequently  made  before 
the  Civil  War,  and  it  is  gratifying  to  note  that  greater 
care  has  been  exercised  in  this  regard  of  late  years,  and 
a  higher  standard  of  culture  and  morality  is  preserved. 
While  it  does  not  palliate  the  disreputable  conduct  of 
American  representatives  abroad,  it  may  be  said  that 
the  permanent  diplomatic  service  which  is  maintained 
by  other  governments  has  not  resulted  in  excluding 
entirely  unworthy  persons. 

The  diplomatic  corps  at  Washington  is  usually  com- 
posed of  gentlemen  of  ability,  of  culture,  and  of  a  high 

1  2  Autobiography  of  Andrew  Dickson  White  (1905),  356. 


14  THE  PRACTICE  OF  DIPLOMACY 

standard  of  personal  character;  but  there  have  been 
notable  exceptions.  The  government  of  the  United 
States  has  been  compelled  to  summarily  dismiss  or  ask 
for  the  recall  of  ministers  for  flagrant  violations  of  the 
established  usages  of  diplomacy  or  the  rules  of  inter- 
national law;  others  have  resorted  to  their  diplomatic 
immunity  to  escape  the  payment  of  honest  debts ;  and 
still  others  have  offended  respectable  society  by  immoral 
relations.  Neither  the  one  method  nor  the  other  can 
entirely  eradicate  the  frailties  of  our  weak  human 
nature. 

The  system  followed  by  the  United  States  exposes  the 
government  to  mistakes  and  sometimes  to  mortification 
and  ridicule  because  of  the  inexperience  of  its  repre- 
sentative. But  appointments  to  the  higher  posts  are 
generally  of  persons  who  have  served  and  gained  dis- 
tinction in  legislative  bodies  or  in  the  professions,  and, 
though  not  experienced  in  the  arts  of  diplomacy  and 
court  etiquette,  they  are  usually  able  to  cope  with  their 
colleagues  on  all  subjects  where  great  principles  are 
involved.  It  will  probably  be  many  years  before  Con- 
gress will  adopt  the  European  system  in  full,  but  it  is 
not  too  much  to  hope  that  provision  shall  be  made  by 
law  whereby  admission  to  the  post  of  secretaries  shall 
be  regulated  by  competitive  examinations,  that  branch 
of  the  service  made  permanent,  and  that  it  shall  be 
largely  drawn  upon  to  fill  the  place  of  ministers. 


CHAPTER  n 

RANK    OF   DIPLOMATIC    REPRESENTATIVES 

The  grade  or  rank  of  diplomatic  representatives  has 
been  the  subject  of  discussion  and  fierce  controversy 
from  the  date  of  the  first  estabHshment  of  permanent 
missions,  four  centuries  ago,  and  ahhough  it  was  finally 
and  definitely  settled  at  the  Congress  of  Vienna  in  1815, 
and  that  settlement  was  accepted  and  has  been  followed 
by  the  United  States,  it  has  recently  been  a  new  source 
of  discussion  and  embarrassment  even  in  Washington. 
Hence  it  may  be  germane  to  our  topic  to  make  some 
reference  to  this  controversy  in  the  past. 

A  diplomatic  envoy  is  the  representative  of  his  gov- 
ernment or  sovereign,  and  his  claim  of  rank  is  for  his 
country  and  not  for  himself;  so  that  the  controversy 
in  the  past  has  been  one  of  nations  rather  than  of  per- 
sons. During  the  mediseval  period  the  struggle  of  the 
European  nations  for  preeminence  in  rank  was  the 
special  feature  of  the  era,  and  it  gave  rise  often  to  the 
most  absurd  pretensions.  It  was  sought  to  be  main- 
tained for  various  reasons,  such  as :  the  title  of  the 
sovereign,  the  size  of  the  dominions,  the  antiquity  of 
the  royal  family  or  date  of  independence  of  the  country, 
the  nature  of  the  government  (whether  monarchy  or 
republic),  the  population,  its  achievements  in  arms,  the 
date  of  the  conversion  of  the  people  to  Christianity,  and 


16  THE  PRACTICE  OF  DIPLOMACY 

even  the  services  rendered  to  the  Pope  or  the  church. 
Up  to  the  time  of  the  reformation  the  Pope  was  uni- 
versally recognized  in  Christendom  as  having  precedence 
over  all  other  sovereigns ;  next  in  order  was  the  emperor 
of  Germany  as  the  successor  of  the  Roman  emperor, 
and  helow  them  a  constant  strife  existed  among  the 
nations.  For  a  time  the  republics  were  refused  what 
were  termed  "  royal  honors,"  but  finally  Venice,  the 
United  Netherlands,  and  Switzerland  were  accorded 
recognition  in  the  order  of  precedence  here  named. 
The  title  of  emperor  was  sought  to  be  made  exclusive 
to  the  old  German  Empire,  and  Russia  was  forced  to 
wait  several  generations  after  its  ruler  assumed  that 
title  before  he  was  accorded  recognition  as  such. 

Four  centuries  ago  the  Pope  of  Rome,  by  virtue  of 
his  conceded  preeminence  and  ecclesiastical  authority, 
sought  to  settle  the  vexed  question  by  issuing  an  order 
fixing  the  relative  rank  of  the  then  existing  nations  of 
Christendom.  It  illustrates  the  intensity  of  feeling  which 
the  question  had  aroused  to  state  that,  notwithstanding 
the  high  papal  authority  of  that  day,  this  arbitrary 
settlement  was  not  accepted  generally,  and  was  observed 
in  Rome  only,  and  even  there  merely  for  a  brief  period. 
It  also  illustrates  the  evanescent  character  of  the  honor 
and  the  changes  of  the  governments  of  the  world  to 
note  that,  of  the  score  and  a  half  of  nations  enumerated 
In  the  papal  order,  only  three  (England,  Spain,  and 
Portugal)  exist  to-day  with  the  royal  titles  then  accorded 
them.  It  is  also  curious  to  note  that  in  this  table  of 
precedence  England  stood  eighth  in  order,  and  Russia 
does  not  appear  in  the  list. 


RANK  OF  DIPLOMATIC  REPRESENTATIVES  17 

A  large  part  of  the  deliberations  of  the  great  con- 
gresses of  European  nations  up  to  and  even  including 
the  early  part  of  the  last  century  was  taken  up  in 
settling  the  question  of  precedence  among  the  envoys 
or  delegates.  This  was  notably  so  at  the  Conference  of 
Westphalia.  At  the  Congress  of  Ryswick  a  warm  debate 
occurred  over  the  demand  of  the  ambassadors  of  the 
emperor  of  Germany  that  a  particular  space  should  be 
set  apart  for  their  carriages,  and  that  this  should  be  the 
post  of  honor.  A  fierce  quarrel  occurred  over  the  allot- 
ment of  rooms.  In  the  conference  room  a  single  table 
had  been  provided,  but  no  agreement  could  be  reached 
as  to  the  order  of  seating,  and  so  in  that  room  they  all 
stood ;  and  another  room  was  provided  in  which  there 
was  no  table,  and  the  envoys  sat  in  a  circle.  At  the 
Diet  of  Regensberg  the  precedence  of  the  ambassadors 
was  decided  by  an  arithmetical  rule  by  which  each  had 
precedence  over  the  rest  twice  in  ten  days.  At  Utrecht 
a  round  table  was  used,  but  this  lost  its  accommodating 
qualities  when  it  was  discovered  that  the  place  of  honor 
was  opposite  the  door  of  entrance,  and  that  every  place 
of  honor  has  a  right  and  a  left.  At  this  congress  a 
quarrel  for  precedence  took  place  between  the  footmen 
of  the  several  ambassadors,  in  the  account  of  which, 
occupying  thirty  pages  in  the  "  History  of  the  Congress," 
it  is  recorded  that  it  "  threatened  to  retard  the  peace  of 
Christendom."  Addison  gives  an  amusing  account  in 
the  "  Spectator,"  of  a  discussion  over  it  which  he  heard 
in  one  of  the  coffee  houses  in  London,  the  result  of 
which  he  sums  up  in  these  words  :  "  All  I  could  learn 
at  last  from  these  honest  gentlemen  was  that  the  matter 


18  THE  PRACTICE  OF  DIPLOMACY 

in  debate  was  of  too  high  a  nature  for  such  heads  as 
theirs,  or  mine,  to  comprehend."  ^  Macaulay,  in  his 
"  History  of  England,"  describes  in  his  best  vein  the 
proceedings  of  the  Congress  of  Ryswick,  which  well 
illustrates  these  idle  controversies.^ 

The  contest  of  envoys  to  these  international  con- 
gresses of  the  past  has  been  not  more  animated  and 
absurd  than  that  of  the  envoys  to  the  several  courts  of 
Europe.  Many  amusing  and  some  tragic  incidents  have 
been  narrated  respecting  the  latter,  from  which  I  give 
the  following  instances.  It  is  related  that  the  Spanish 
ambassador  to  England  in  1661,  in  order  to  secure  a 
place  in  the  royal  procession  next  to  the  king  and  be- 
fore his  French  colleague,  attacked  the  latter's  coach  in 
the  streets  of  London,  hamstrung  his  horses  and  killed 
his  men,  thus  vindicating  his  country's  greatness. 

When  the  plenipotentiaries  of  France  and  Austria 
met  to  settle  the  conditions  of  marriage  between  Louis 
XIV  and  Maria  Theresa,  in  order  to  preserve  the  full 
dignity  of  their  nations,  they  stepped  together,  with  the 
right  foot,  side  by  side,  into  a  council  chamber  hung  in 
corresponding  halves  with  their  respective  colors,  and 
sat  down  at  the  same  instant  precisely  opposite  each 
other  at  a  square  table,  on  two  mathematically  equiva- 
lent armchairs.  Such  events  as  these  in  statecraft  led 
Voltaire  to  remark  that  armchairs,  backed  chairs,  and 
stools  were  "  important  subjects  of  politics,  and  illustri- 
ous subjects  of  quarrels  "  in  those  days. 

A  story  is  told  of  two  newly  arrived  envoys  from 

1  The  Spectator,  No.  481,  September  11,  1712. 

2  4  History  of  England,  Macaulay  (ed.  1855),  788. 


RANK  OF  DIPLOMATIC   REPRESENTATIVES  19 

Italy  and  Germany,  who,  being  unable  to  agree  as  to 
which  should  first  present  his  credentials  to  the  king 
of  France,  stipulated  that  whoever  reached  Versailles 
soonest  on  the  day  of  their  reception  should  take  prece- 
dence of  the  other.  The  Prussian  went  the  nio;:ht  before 
the  audience  and  sat  on  a  bench  before  the  palace  until 
dawn.  The  Italian  arriving  early  in  the  morning,  saw 
the  Prussian  there  before  him,  and  slipped  surrepti- 
tiously through  the  door  of  the  king's  bedroom  and 
commenced  his  speech  of  audience.  The  Prussian  rushed 
after  him,  pulled  him  back  by  the  skirts,  and  commenced 
his  harangue.  The  memoirs  of  diplomatists  and  the 
histories  of  Europe  are  full  of  the  extreme  and  absurd 
contentions  of  envoys,  but  the  foregoing  are  sufficient 
to  illustrate  their  extreme  and  often  farcical  pretensions. 

None  of  the  monarchs  of  Europe  was  more  insistent 
upon  his  rank  than  the  "Little  Corporal"  when  he 
made  himself  emperor  of  France.  On  inviting  the  Pope 
to  attend  his  coronation,  it  was  stipulated  that  the  same 
ceremonies  should  be  observed  as  at  the  coronations  of 
the  ancient  kings  of  France,  but  on  the  arrival  of  the 
Holy  Father  the  latter  was  astonished  to  see  Napoleon 
take  precedence  over  him,  as  if  there  was  no  question 
about  it.  In  1808  he  caused  the  edition  of  the  "  Alma- 
nach  de  Gotha  "  to  be  seized  because,  as  was  its  custom, 
it  arranged  the  reigning  houses  alphabetically  and  did 
not  place  Napoleon  first. 

The  contest  as  to  the  rank  of  states  which  had  been 
waged  for  centuries  was  sought  to  be  settled  at  the 
Congress  of  Vienna  of  1815.  A  committee  was  ap- 
pointed with   instructions  to  fix  the  principles  which 


20  THE  TRACTICE  OF  DIPLOMACY 

should  regulate  the  rank  of  reigning  monarchs  and  all 
questions  connected  therewith.  The  committee  submit- 
ted a  report  to  that  end,  but  after  a  long  discussion  the 
Powers  abandoned  the  project  as  one  too  difficult  to 
realize,  and  confined  their  action  to  prescribing  the 
composition  and  rank  of  the  diplomatic  corps  only  at 
their  respective  courts.  But  since  that  period,  by  the 
practice  of  governments,  it  has  come  to  be  recognized 
by  them  all  that  there  can  be  no  rank  or  precedence 
among  independent  and  sovereign  nations,  but  that  all 
must  stand  on  an  equality  in  their  negotiations.  For 
instance,  at  the  conference  at  Paris  in  1856,  one  of  the 
most  important  in  that  century,  the  representatives  sat 
at  a  round  table  in  the  alphabetical  order,  in  the  French 
language,  of  their  national  titles.  In  the  Bering  Sea 
Tribunal  of  Arbitration  of  1893  the  United  States  had 
precedence  over  Great  Britain  because  of  this  order  of 
arrangement.  The  same  practice  was  observed  at  The 
Hague  Peace  Conference  of  1899.  At  that  conference 
it  was  expressly  declared  by  the  representatives  of  the 
Great  Powers  of  Europe,  "  here  there  are  no  great,  no 
small,  powers ;  all  are  equal." 

The  United  States  accepted  the  order  prescribed  by 
the  Congress  of  Vienna  in  1815,  which,  with  the  addi- 
tion made  in  1818,  recognized  the  composition  of  the 
diplomatic  corps  in  four  classes,  with  rank  in  the  order 
named :  1st,  Pajjal  nuncios  and  ambassadors ;  2d,  en- 
voys or  ministers  plenipotentiary;  3d,  ministers  resident; 
4:th,  charges  d'affaires.  As  a  rule,  each  government 
decides  for  itself  the  rank  of  the  diplomatic  representa- 
tive it  sends  abroad,  but  it  usually  follows  the  existing 


RANK  OF  DIPLOMATIC   REPRESENTATIVES  21 

practice  of  countries  of  relative  conditions.^  For  more 
than  a  century  the  United  States  sent  only  representa- 
tives of  the  second,  third,  and  fourth  class.  At  the 
beginning  of  its  history  it  did  not  appoint  ambassadors, 
and  the  practice  of  sending  only  ministers  was  followed 
up  to  a  recent  date. 

Our  ministers  plenipotentiary  at  the  capitals  of  the 
Great  Powers  where  ambassadors  were  maintained  re- 
peatedly complained  to  the  secretary  of  state  that  they 
were  often  humiliated  and  their  usefulness  sometimes 
impaired  by  the  lower  rank  to  which  they  were  assigned 
in  the  diplomatic  corps,  and  this  assertion  gained  gen- 
eral currency  and  acceptance  through  the  press.  It  is 
true  that  ambassadors  take  precedence  over  ministers  in 
the  order  of  reception  and  seating  on  public  occasions, 
at  entertainments,  and,  at  some  European  capitals,  in 
the  order  of  their  admission  to  interviews  at  the  foreign 
office.  It  certainly  is  not  agreeable  to  a  minister  of  the 
great  American  Republic,  if  he  arrives  first  at  the  For- 
eign Office,  to  be  required  to  step  aside  and  give  place  to 
the  representative  of  Turkey  or  Spain,  and  wait  till  the 
latter's  audience  with  the  secretary  for  foreign  affairs  is 
concluded,  simply  because  he  bears  the  title  of  ambas- 

*  In  1790  President  Washington  proposed  to  send  a  chargd  d'affaires  to 
Lisbon.  The  Portuguese  government  represented  that  "circumstances 
did  not  permit  them  to  concur  in  the  grade  of  charg^  d'affaires  —  a  grade 
of  little  privilege  or  respectability  by  the  rules  of  their  court,  and  held  in 
so  low  estimation  with  them,  that  no  proper  character  would  accept  it  to 
go  abroad."  The  President  communicated  this  fact  to  the  Senate  and 
nominated  a  minister  resident,  saying:  *'  I  have  decided  to  accede  to  the 
desire  of  the  Court  of  Lisbon,  in  the  article  of  grade.  ...  I  do  not  mean 
that  the  change  of  grade  shall  render  the  mission  more  expensive."  —  1 
American  State  Papers,  For.  Rel.  127. 


22  THE   PRACTICE   OF  DIPLOMACY 

sador.  Mr.  Bancroft,  the  American  Minister  at  Berlin, 
when  subjected  to  this  treatment  protested  against  it, 
and  Prince  Bismarck  decided  that  the  practice  should 
not  continue.  The  rule  promulgated  by  the  prince  was 
that  "  the  chief  of  a  mission  who  arrives  first  at  the 
Foreign  Office  is  first  admitted,  be  his  rank  that  of  am- 
bassador, minister,  or  charge."  The  same  rule  prevailed 
for  some  time  at  St.  Petersburg.^ 

Other  American  ministers,  who  were  made  to  suffer 
inconvenience  or  humiliation  from  the  custom,  might 
possibly  by  firm  or  considerate  remonstrance  have  ob- 
tained relief.  The  remedy  uniformly  suggested  has 
been  to  raise  the  grade  of  representatives  at  the  capitals 
named  to  that  of  ambassador,  but  the  successive  secre- 
taries of  state  declined  to  make  the  recommendation  to 
Congress.  Such  was  the  action  of  Secretary  Marcy  in 
1856.  Secretary  Frelinghuysen  said  that  the  depart- 
ment could  not,  "  in  justice  to  its  ministers  abroad,  ask 
Congress  to  give  them  higher  rank  with  their  present 
salaries ;  neither  could  it  with  propriety  appeal  to  Con- 
gress for  an  allowance  commensurate  with  the  necessary 
mode  of  life  of  an  ambassador."  When  in  1885  Mr. 
Phelps,  the  American  Minister  to  Great  Britain,  urged 
that  his  mission  be  raised  to  an  embassy.  Secretary 
Bayard  replied :  "  The  question  of  sending  and  receiv- 
ing ambassadors,  under  the  existing  authorization  of 
the  Constitution  and  the  statutes,  has  on  several  occa- 
sions had  more  or  less  formal  consideration,  but  I  can- 
not find  that  at  any  time  the  benefits  attending  a  higher 

*  1  A  Digest  of  International  Law,  by  Francis  Wharton,  1887,  625; 
American  Diplomacy,  by  Eugene  Schuyler,  1886,  113. 


RANK  OF  DIPLOMATIC  REPRESENTATIVES  23 

grade  of  ceremonial  treatment  have  been  deemed  to 
outweigh  the  inconveniences  which,  in  our  simple  social 
democracy,  might  attend  the  reception  in  this  country 
of  an  extraordinarily  foreign  privileged  class."  ^ 

These  reasons  against  creating  for  the  United  States 
the  grade  of  ambassador  would  seem  to  be  conclusive, 
but  in  1893  Congress  did  just  what  Secretary  Freling- 
huysen  said  would  be  an  injustice  to  our  ministers  — 
authorized  the  grade  without  increasing  the  pay  of  its 
representatives.  The  legislation  to  this  effect  was  in- 
serted as  a  clause  in  one  of  the  regular  appropriation 
bills,  and  was  passed  through  both  houses  without  a 
word  of  discussion  or  comment.  If  its  effect  in  changing 
a  practice  of  the  government  for  a  hundred  years  had 
been  made  known  at  the  time,  it  is  extremely  doubtful 
that  it  would  have  secured  the  approval  of  Congress.^ 

I  defer  a  consideration  of  the  question  of  expense  till 
I  come  to  consider  the  subject  of  salaries  in  the  diplo- 
matic service,  remarking  only  that  the  effect  of  the  law 
is  to  make  it  possible  for  a  man  of  wealth  alone  to 
accept  appointment  as  an  ambassador.  Constant  com- 
plaint was  made  that  the  salaries  of  our  ministers  at 

1  1  Wharton's  Digest,  623-625. 

2  The  Act  of  Congress  is  as  follows  :  — 

"  Be  it  enacted,  etc.  .  .  .  (par.  1)  Whenever  the  President  shall  be 
advised  that  any  foreign  government  is  represented,  or  is  about  to  be 
represented,  in  the  United  States  by  an  ambassador,  envoy  extraordinary, 
minister  plenipotentiary,  minister  resident,  special  envoy,  or  chargd 
d'affaires,  he  is  authorized,  in  his  discretion,  to  direct  that  the  represent- 
ative of  the  United  States  to  such  government  shall  bear  the  same  desig- 
nation. 

"  This  provision  shall  in  no  wise  affect  the  duties,  powers,  or  salary  of 
such  representative."  —  Act  of  March  1,  1893. 


'/ 


24  THE   PRACTICE   OF  DIPLOMACY 

London,  Paris,  Berlin,  St.  Petersburg,  Vienna,  and 
Rome  were  far  below  the  demands  of  the  posts,  and  now 
that  they  have  been  raised  to  embassies,  which  require 
the  maintenance  of  large  houses  or  palaces,  and  a  much 
more  lavish  style  of  living,  the  expenditures  of  the  posts 
are  greatly  increased.  It  is  a  sad  day  for  a  republic 
when  its  highest  offices  cease  to  be  rewards  of  merit 
and  fitness,  and  when  they  can  be  filled  only  by  rich 
men. 

The  second  objection  to  the  creation  of  ambassadors 
is  that  forcibly  suggested  by  Secretary  Bayard  —  the 
establishment  of  a  kind  of  monarchical  class  ill  befitting 
our  plain  democratic  pretensions.  An  ambassador  has 
been  held  in  Europe  to  be  the  special  representative  of 
the  sovereign,  and  to  stand  in  his  place  at  the  foreign 
court,  with  the  right  to  claim  audience  at  any  time  with 
the  head  of  the  state,  and  entitled  to  privileges  and 
honors  not  accorded  to  other  envoys  of  nations.  The 
claim,  as  we  shall  see,  is  in  great  part  fictitious,^  but 
it  is  sufficiently  well  established  in  Eurof)ean  practice 
to  introduce  a  disturbing  element  into  our  American 
society.  Events  in  Washington  following  the  establish- 
ment of  embassies  has  shown  that  Secretary  Bayard 
was  not  astray  in  his  fears  as  to  "  the  inconvenience 
which,  in  our  simple  social  democracy,  might  attend  the 
reception  in  this  country  of  an  extraordinarily  foreign 
privileged  class."  The  recognition  by  the  President  of 
ambassadors  from  Great  Britain,  France,  Germany, 
Russia,  and  Italy,  in  reciprocity  for  our  nomination  of 
ambassadors  to  those  powers,  was  followed  by  a  scan- 

^  See  infra  p. 


RANK  OF  DIPLOMATIC   REPRESENTATIVES         25 

dalous  scene  in  the  Senate  chamber  on  the  first  inau- 
guration day  following  their  appointment.  In  the  zeal 
of  the  subordinate  officials  to  show  special  honor  to 
these  newly-created  and  exalted  dignitaries,  all  the  other 
members  of  the  diplomatic  body  were  neglected  and  left 
to  find  their  way  to  their  residences  without  an  oppor- 
tunity to  witness  and  honor  the  induction  of  the  new 
President  into  office.  And  if  the  press  reports  are  to  be 
credited,  further  trouble  was  occasioned  by  the  question 
of  the  proper  location  of  the  ambassadors  at  the  next 
inauo-uration. 

Then  came  the  problem  whether  or  not  the  Vice- 
President  of  the  United  States  should  make  the  first 
call  upon  the  new  ambassadors,  and  the  further  question 
whether  or  not  the  secretary  of  state,  who  stands  second 
in  succession  to  the  presidency,  and  on  the  death  of  the 
Vice-President  first  in  succession,  should  give  place  at 
entertainments  and  public  functions  to  these  dignitaries. 
These  momentous  questions  were  doubtless  settled  aright 
in  the  light  of  European  precedents,  and  the  good  sense 
and  prudence  of  the  eminent  gentlemen  who  hold  the 
ambassadorial  rank  have,  it  is  probable,  prevented  other 
embarrassing  and  foolish  questions  from  arising;  but 
these  events,  and  those  which  attended  the  advent 
of  .the  first  Mexican  ambassador,  whose  coming  was 
resented  by  the  European  ambassadors,  as  well  as  the 
later  unpleasant  incident  at  the  White  House,  when  the 
ambassadors  coUided  with  the  Supreme  Court,  would 
have  been  avoided  if  the  Act  of  1893  had  not  been 
passed. 

When  the  act  creating  ambassadors  was  passed  by 


26  THE  PRACTICE  OF  DIPLOMACY 

Congress,  the  government  of  the  United  States  had 
grown  to  recognized  greatness  and  dignity  in  the  eyes 
of  European  sovereigns,  its  diplomatic  service  had  m 
the  past  hundred  years  and  more  won  deserved  honor 
and  distinction,  and  it  did  not  require  the  bauble  of  a 
title  to  give  its  envoys  greater  standing  or  efficiency.  I 
doubt  very  much  that  the  absence  of  rank  has  ever 
prevented  any  really  able  minister  of  the  United  States 
from  rendering  his  country  a  needed  service. 

The  true  remedy  for  the  embarrassment  which  Ameri- 
can diplomatists  suffered  in  the  great  European  capitals 
because  of  rank  was  not  in  servilely  following  mon- 
archical customs  by  the  creation  of  a  new  grade  in  our 
service,  but  in  our  government  taking  the  initiative  in  a 
movement  for  the  abolishment  of  all  rank  in  the  diplo- 
matic body.  In  the  reference  to  the  foolish  contests 
which  were  carried  on  for  centuries  by  the  nations  of 
Christendom,  great  and  small,  for  precedence,  we  have 
seen  that  only  one  solution  of  the  problem  could  be 
found,  and  that  was  so  simple  that  we  wonder  now  that 
so  fierce  a  warfare  could  have  been  possible  —  that  is, 
a  recognition  of  the  equality  of  sovereign  nations,  so 
that  to-day  the  smallest  repubHc  of  Central  America  is 
equal,  in  negotiations  and  at  international  conferences, 
with  the  most  powerful  empire  of  Europe.  There  will 
be  no  satisfactory  settlement  of  the  question  of  diplo- 
matic rank  until  all  class  distinctions  and  privileges  are 
abolished,  and  a  single  grade  is  estabHshed  in  all  the 
capitals  of  the  world. 

The  Congress  of  Vienna  placed  nuncios  and  legates 
in  the  same  grade  with  ambassadors.    Since  the  Refor- 


RANK  OF  DIPLOMATIC  REPRESENTATIVES  27 

mation  these  have  been  sent  by  the  Pope  to  Catholic 
countries  only,  and  in  the  courts  to  which  they  are 
accredited  they  are  given  precedence  over  ambassadors. 
No  Papal  nuncio  has  ever  been  accredited  to  the  United 
States.  American  ministers  resident  at  the  courts  of 
Europe  to  which  Papal  nuncios  are  accredited  have, 
however,  recognized  the  precedence  accorded  them  by 
making  the  first  visit  and  in  otherwise  observing  the 
courtesies  due  to  their  established  station ;  and  this 
action  has  been  approved  by  the  Department  of  State.^ 
Although,  as  stated,  each  government  determines  for 
itself  the  grade  of  representative  it  will  send  to  other 
countries,  reciprocity  of  grade  is  not  always  observed. 
A  representative  of  a  lower  grade  is  sometimes  received 
from  a  country  to  which  one  of  a  higher  grade  is  sent. 
The  irregularity  of  rank  is  likely  at  any  time  to  create 
diplomatic  embarrassments,  as  it  already  has  done  in 
more  than  one  instance.  We  have  seen  that  the  recep- 
tion at  Washington  of  an  ambassador  from  Mexico  was 
resented  by  the  ambassadors  of  the  European  powers. 
The  real  ground  for  their  resentment  was  that  the  first 
person  sent  as  Mexican  ambassador  was  a  member  of 
the  court-martial  which  condemned  the  so-styled  Em- 
peror Maximilian  to  death,  although  it  was  alleged  that 
they  did  not  regard  Mexico  as  sufficient  in  population 
and  importance  to  exercise  the  right  of  ambassadorial 
appointment.^     Suppose  China,  embracing   more  than 

1  Foreign  Relations  of  the  United  States,  1875,  1115,  1119, 

2  "  Instances  of  the  boycotting  of  foreign  diplomats  by  their  colleagues 
are  by  no  means  so  rare  as  one  might  imagine.  The  ostracism  is,  however, 
generally  due  to  a  cause  of  social  character,  and  there  are  very  few  in- 
stances of  an  envoy  being  subjected  to  such  treatment  as  the  Mexican 


28  THE  PRACTICE  OF  DIPLOMACY 

one  fourth  of  the  population  of  the  earth,  older  by 
thousands  of  years  than  the  oldest  of  the  so-called  great 
Powers  of  Europe,  and  possessing  a  high  standard  of 
civilization  and  intellectual  attainments,  should  accredit 
ambassadors  to  those  powers  —  upon  what  reasonable 
ground  could  they  be  rejected?  And  yet  should  they 
have  an  intimation  that  such  was  the  intention  of  that 
ancient  empire,  it  is  probable  that  its  foreign  of&ce 
would  receive  such  representations  as  would  lead  it  to 
desist  from  its  intention. 

The  republic  of  Brazil  recently  decided  to  raise  its 
legation  in  Washington  to  an  embassy.  In  due  reci- 
procity the  American  minister  to  Brazil  has  been  named 
an  ambassador.  The  public  press  has  reported  that, 
while  some  doubt  existed  as  to  the  propriety  of  such 
action,  it  was  held  that  under  the  law  of  Congress  of 
1893,  already  quoted,  the  government  of  the  United 
States  had  no  power  to  determine  the  grade  of  the  di- 
plomatic representative  sent  to  it  by  a  foreign  power. 
If  such  is  the  case,  Hayti  or  Montenegro  might  send 
an  ambassador  to  Washington. 

The  most  serious  embarrassment  resulting  from  this 
difPerence  in  grade  of  diplomatic  representation  is  illus- 
trated by  the  relations  at  present  existing  between  the 
United  States  and  Turkey.  For  a  number  of  years  past 
these  relations  have  been  in  a  most  unsatisfactory  con- 
dition. In  no  country  of  the  western  world  could  the 
old  fiction  of  the  ambassador  as  the  personal  repre- 
sentative of  the  sovereign  to-day  approach  so  nearly 

Ambassador  at  Washington  suffered,  merely  for  political  reasons."  — 
Marquise  de  Fontenoy. 


RANK  OF   DIPLOMATIC   REPRESENTATIVES  29 

a  reality  as  in  Turkey,  as  the  Sultan  is  more  fully  than 
any  other  monarch  the  personal  ruler  of  the  state.  All 
the  Great  Powers  of  Europe,  and  even  the  Shah  of  Per- 
sia, are  represented  at  Constantinople  by  ambassadors, 
and  they  exercise  the  right  of  access  to  the  Sultan  at 
will  to  discuss  official  matters.  The  American  ministers 
plenipotentiary  have  represented  to  their  country  that 
it  is  very  difficult  to  get  any  just  and  proper  consider- 
ation and  dispatch  of  their  business,  because  of  the 
irresponsible  character  of  the  secretary  for  foreign 
affairs  and  even  of  the  grand  vizier,  as  all  important 
matters  are  determined  by  the  Sultan  ;  and  that,  as  they 
do  not  possess  the  ambassadorial  character,  they  cannot 
without  great  difficulty  have  audience  with  him  to  discuss 
official  business. 

To  remedy  this  embarrassment.  President  McKinley 
caused  application  to  be  made  to  the  Turkish  govern- 
ment for  the  appointment  by  the  two  governments 
respectively  of  ambassadors ;  but  the  proposition  was 
not  accepted  by  Turkey.  The  condition  of  the  interests 
of  American  citizens  in  that  empire  continuing  to  be 
very  unsatisfactory.  President  Roosevelt  renewed  the 
application  for  the  appointment  of  ambassadors ;  but  it 
was  again  rejected.  It  cannot  well  be  understood  in  the 
United  States  why  this  application  should  be  refused, 
when  ambassadors  from  much  smaller  and  less  powerful 
countries,  like  Italy  and  Persia,  are  received  at  Constan- 
tinople.^ 

^  The  diplomatic  appropriation  bill  of  1906  has  provided  for  the  ap- 
pointment of  an  ambassador  to  Turkey.  It  is  believed  that  the  Sultan 
will  not  defy  the  wishes  of  Congress  as  he  has  those  of  the  President. 


30  THE  PRACTICE  OF  DIPLOMACY 

In  1903  a  delegation  of  some  of  the  most  prominent 
citizens  of  the  United  States,  representing  large  property- 
interests  in  the  Turkish  Empire,  made  a  visit  to  Wash- 
ington and  laid  before  the  President  a  memorial,  setting 
forth  that  American  citizens  and  property  in  that  em- 
pire were  denied  the  rights  and  protection  which  had 
been  secured  by  the  ambassadors  of  the  Great  Powers 
of  Europe  to  their  subjects  and  property  interests.  The 
President,  being  impressed  with  the  justice  of  the 
memorial,  caused  a  cable  instruction  to  be  sent  to 
the  American  minister  in  Constantinople  directing  him 
to  ask  an  audience  of  the  Sultan  in  the  name  of  the 
President,  to  enable  him  to  communicate  a  message  from 
the  President  to  the  Sultan  on  the  subject  of  the  me- 
morial. After  a  delay  of  some  weeks  an  audience 
was  granted  on  the  express  condition  that  the  minister 
should  be  limited  to  delivering  the  message  of  the  Presi- 
dent, but  that  he  would  not  be  permitted  to  discuss 
the  subject  with  the  Sultan. 

Even  this  decisive  action  of  the  President  seems  to 
have  had  no  effect,  as  the  American  citizens  continued 
to  be  deprived  of  the  rights  and  privileges  enjoyed  by 
the  subjects  of  the  Great  Powers  of  Europe,  and  for  a 
third  time  an  application  was  made  and  rejected  for  the 
reception  of  an  American  representative  with  the  grade 
of  ambassador.  The  American  minister  at  Constanti- 
nople, under  renewed  and  urgent  instructions  from 
Washington,  pressed  for  a  settlement  of  the  question 
at  issue,  but  he  was  greatly  delayed  and  embarrassed 
by  the  fact  that  the  ministry  have  no  real  power  to  dis- 
patch any  important  public  business,  because  the  Sultan 


RANK  OF  DIPLOMATIC  REPRESENTATIVES  31 

reserves  to  himself  that  prerogative,  and  by  the  further 
fact  that,  not  being  an  ambassador,  he  found  great  dif- 
ficulty in  reaching  the  Sultan.  Meanwhile,  this  impor- 
tant question  remained  undetermined,  and  it  became 
necessary  to  dispatch  a  formidable  American  fleet  to 
Turkish  waters  to  evidence  the  President's  interest  in 
the  question,  and  the  fleet  was  held  in  the  Turkish  port 
until  a  promise  was  exacted  that  the  demand  of  the 
United  States  would  be  complied  with ;  but  even  that 
promise  remains  unexecuted.  What  more  striking 
argument  can  be  presented  against  the  maintenance 
of  the  various  grades  in  the  diplomatic  service? 

There  is  no  good  reason  why  the  representative  of 
the  smallest  American  republic  or  European  principality 
should  have  a  different  standing  at  the  Foreign  Office  in 
London,  for  instance,  from  that  freely  conceded  to  him 
in  the  Peace  Conference  of  the  nations  at  The  Hague ; 
neither  is  it  reasonable  that  any  government,  because  of 
a  mere  grade  in  the  diplomatic  body,  should  be  com- 
pelled to  make  a  more  lavish  display  at  a  foreign  court 
than  its  principles  or  convenience  justified. 

Reference  has  been  made  to  the  question  raised  as  to 
the  relative  rank  of  the  secretary  of  state  and  of  the 
ambassadors  at  Washington.  Following  the  practice  ex- 
isting in  European  countries,  the  secretary  yielded  the 
the  precedence  to  the  ambassadors.  But  if  that  practice 
should  be  strictly  followed  an  argument  might  be  ad- 
vanced in  favor  of  the  secretary.  In  the  monarchical 
countries,  not  only  the  heir-apparent  but  all  the  children 
of  the  reigning  sovereign,  as  also  the  brothers,  nephews, 
and  grandsons,  have  precedence  over  ambassadors.    By 


32  THE  PRACTICE  OF  DIPLOMACY 

virtue  of  a  recent  act  of  Congress  the  secretary  of  state 
is  made  the  successor  to  the  presidency,  in  the  event  of 
the  death  of  the  President  and  Vice-President.  By  a 
parity  of  reasoning  the  secretary  standing  so  near  in  the 
line  of  succession  to  the  chief-magistracy,  a  claim  might 
be  urged  for  him  of  precedence  over  the  ambassadors. 

Before  the  act  of  Congress  cited   was  passed,  the 
secretary  of  state  had  been  recognized  as  the  head  of 
the  cabinet.   This  grew  out  of  the  fact  that  the  Depart- 
ment of  State  was  the  first  created,  and  the  custom  was 
established  in  legislation  of  naming  the  secretary  of 
state  first  in  the  cabinet  list.    For  twenty  years  and 
more  after  the  organization  of  the  Federal  government 
the  secretaries  of  state  and  of   the  treasury  received 
his-her  salaries  than  their  colleagues.   But  the  chief  of 
the  Department  of  State  has  not  always  held  this  pre- 
eminence unchallenged.    The  cabinet  of  Mr.   Monroe 
had  more  than  one  aspirant  to  be  his  successor,  and  they 
conspired  against  the  more  prominent  candidate,  John 
Quincy  Adams,  secretary  of  state.    They  first  succeeded 
in  making  by  act  of  Congress  the  salaries  of  the  cabinet 
of&cers  uniform.    They  then  demanded  social  equality. 
It  had  been   the  practice  from  the  foundation  of  the 
government  for  the  President  to  invite  only  the  secre- 
tary of  state  to  the  diplomatic  dinners.    President  Mon- 
roe was  given  to  understand  that  henceforth  such  a 
distinction  would  be  considered  offensive  to  the  other 
heads  of   departments.     The  President  determined  to 
invite  thereafter  to  the  diplomatic  dinners  all  the  cabinet 
officers.   Mr.  Adams  narrates  the  result  in  his  diary  :  — 
"  The  Foreign  Ministers,  though  wilhng  to  yield  pre- 


RANK  OF  DIPLOMATIC  REPRESENTATIVES  33 

cedence  to  the  Secretary  of  State,  are  not  willing,  at 
dinners  of  professed  ceremony  given  to  them,  to  be 
thrown  at  the  bottom  of  the  table  by  postponement  to 
four  or  five  heads  of  Departments  and  their  wives.  To 
avoid  these  difficulties,  Mr.  Monroe  last  winter  invited 
the  Foreign  Ministers  without  any  of  the  heads  of  De- 
partments, and  to  fill  the  table  invited  with  them  the 
navy  commissioners  and  some  respectable  private  in- 
habitants of  the  city.  But  this  did  not  escape  remark. 
The  Foreign  Ministers  were  not  pleased  at  being  invited 
with  persons  of  inferior  rank  and  private  citizens,  nor 
at  the  absence  of  the  Secretary  of  State,  with  whom 
they  had  usually  been  associated  on  these  occasions 
heretofore.  The  slight  to  the  Secretary  of  State  him- 
self by  the  omission  to  invite  him  as  heretofore  was  also 
noticed  ...  by  the  Foreign  Ministers  and  by  all  the 
gossips  of  the  District,  who  have  drawn  many  shrewd 
conclusions  from  it.  .  .  .  These  incidents,  apparently 
so  insignificant  and  contemptible,  are  connected  with 
all  the  pantings  of  Crawford's  ambition,  and  with  the 
future  history  of  this  nation  and  of  the  world."  ^ 

'  4  Memoirs  of  John  Quincy  Adams  (1874),  293.    Mr.  Crawford  was 
a  member  of  the  Cabinet  and  Adams's  competitor  for  the  presidency. 


CHAPTER  in 

THE   APPOINTMENT    OF   DIPLOMATS 

The  diplomatic  representation  of  the  United  States  to 
other  countries  consists  at  present  of  ten  ambassadors,  ^ 
twenty-seven  ministers,  two  ministers  resident,  who  also 
act  as  consuls-general,  and  one  diplomatic  agent  and 
consul-general.  Six  of  the  ministers  plenipotentiary  are 
accredited  to  more  than  one  state :  the  minister  to 
Greece  acting  also  as  minister  to  Montenegro,  and  as 
diplomatic  agent  to  Bulgaria;  the  minister  to  Rouma- 
nia  also  to  Servia;  the  minister  to  the  Netherlands 
also  to  Luxemburg ;  the  minister  to  Guatemala  also  to 
Honduras ;  the  minister  to  Nicaragua  also  to  Salvador 
and  Costa  Rica ;  and  the  minister  to  Uruguay  also  to 
Paraguay.  The  representative  of  the  United  States  at 
Cairo  is  styled  Agent,  out  of  deference  to  the  Sultan, 
the  Khedive  of  Egypt  being  under  his  suzerainty,  but 
for  all  practical  intercourse  free  from  his  control.^ 

Other  governments  follow  the  same  practice  as  to 
combining  two  or  more  countries  under  one  diplomatic 
representative.  Adjoining  countries  are  often  associ- 
ated in  missions,  because  of  proximity.  A  number  of 
ministers  to  the  United  States  are  also  accredited  to 
Mexico.    A  single  minister  is  often  accredited  to  more 

*  This  classification  is  in  conformity  with  the  diplomatic  appropriation 
bill  of  1906. 


THE  APPOINTMENT  OF  DIPLOMATS  35 

than  one  of  the  Central  and  South  American  republics, 
as  also  to  Sweden  and  Denmark,  Belgium  and  Holland. 
The  Chinese  minister  to  the  United  States  has  the 
unique  duty  of  also  representing  his  country  to  the  re- 
publics of  Mexico,  Cuba,  Panama,  and  Peru,  because 
of  the  large  population  of  Chinese  laborers  in  these 
countries. 

The  embassies  are  provided  with  two  or  three  secre- 
taries, and  most  of  the  legations  with  one  secretary  and 
two  of  them  with  second  secretaries.  The  embassy  to 
Japan  has  also  a  Japanese  secretary  and  six  student 
interpreters,  and  the  legation  in  China  a  Chinese  secre- 
tary and  ten  student  interpreters.  In  addition  to  the 
foregoing,  which  constitutes  the  diplomatic  body,  there 
are  attached  to  several  of  the  embassies  and  more  im- 
portant legations  military  and  naval  officers. 

In  the  early  history  of  European  diplomatic  inter- 
course it  was  the  practice  to  require  reciprocity  in  the 
exchange  of  envoys,  governments  going  to  the  length 
of  not  allowing  a  retiring  representative  to  depart  till 
assurance  was  received  that  another  would  be  sent. 
The  English  government  of  that  period  insisted  that  a 
French  ambassador  should  embark  at  Calais  at  the  same 
hour  that  an  English  ambassador  embarked  at  Dover. 
But  such  strictness  has  long  ago  ceased. 

John  Adams  resided  three  years  in  London  as  minis- 
ter without  any  British  representative  being  sent  to  the 
United  States.  After  his  return  to  America,  President 
Washington  consulted  him  as  to  the  course  we  ought 
to  pursue  as  to  our  diplomatic  intercourse  with  Great 
Britain.    In  his  reply  he  said  :  "  The  utmost  length  that 


36  THE  PRACTICE  OF  DIPLOMACY 

can  now  be  gone,  with  dignity,  would  be  to  send  a 
minister  to  the  court  of  London,  with  instructions  to 
present  his  credentials,  demand  an  audience,  make  his 
remonstrance ;  but  to  make  no  establishment,  and  de- 
mand his  audience  of  leave  and  quit  the  Kingdom  in 
one,  two,  or  three  months  if  a  minister  of  equal  degree 
were  not  appointed  and  actually  sent  to  the  President 
of  the  United  States  from  the  King  of  Great  Britain."  ^ 

Washington  did  not  deem  it  prudent  to  follow  this 
advice,  but  named  Gouverneur  Morris  an  agent  to  go 
to  London  and  confer  unofficially  with  the  officials  as 
to  the  most  urgent  pending  questions.  A  British  min- 
ister was  not  appointed  to  the  United  States  till  1791, 
eight  years  after  the  treaty  of  peace  and  independence. 
His  arrival  in  the  United  States  was  soon  followed  by 
the  appointment  of  a  permanent  minister  from  the 
United  States  to  London. 

It  is  the  usual  practice  of  nations  at  the  present  day 
to  observe  reciprocity  in  the  exchange  of  ministers,  but 
the  United  States  has  never  construed  this  practice 
strictly,  and  it  sends  ministers  to  not  less  than  eight 
states  which  do  not  maintain  regular  diplomatic  repre- 
sentatives in  this  country. 

It  is  the  practice  in  Europe  before  publicly  announcing 
the  appointment  of  a  new  ambassador  or  minister  to 
privately  consult  the  government  to  which  he  is  to  be 
accredited,  to  ascertain  whether  he  will  be  acceptable 
to  it,  2>€,rsona  grata  ;  and  refusals  are  not  uncommon. 
Only  a  few  years  ago  the  German  government  is  under- 
stood to  have  refused  three  persons  successively  pro- 

1  Letter  of  August  29,  1790.   8  John  Adams's  Works,  499. 


THE  APPOINTMENT  OF  DIPLOMATS  37 

posed  by  Great  Britain  as  ambassador  at  Berlin  before 
an  acceptable  one  was  found.  Up  to  a  recent  date  the 
practice  was  not  followed  by  the  United  States. 

In  the  discussion  which  was  occasioned  by  the  rejec- 
tion of  Mr.  Keiley  as  minister  to  Austria,  in  1885,  Secre- 
tary Bayard  stated  "  that  no  case  can  be  found  in  the 
annals  of  this  government  in  which  the  acceptability  of 
an  envoy  from  the  United  States  was  inquired  about  or 
ascertained  in  advance  of  his  appointment  to  the  mis- 
sion for  which  he  was  chosen;"^  and  he  proceeded  to 
show  that  this  action  was  based  upon  our  peculiar 
political  system.  But  since  the  act  of  1893,  creating 
the  grade  of  ambassadors,  it  has  been  thought  expedient 
by  the  Department  of  State,  owing  to  the  fiction  that 
they  stand  in  closer  relation  to  the  sovereign  than  a 
minister,  to  advise  the  foreign  government  of  the  in- 
tended nomination  of  an  ambassador  before  his  name 
is  sent  to  the  Senate.  If  Secretary  Bayard's  argument 
is  of  any  force  it  furnishes  an  additional  reason  against 
the  wisdom  of  the  act.  The  ancient  practice  of  our 
government  as  to  diplomatic  representatives  below  the 
grade  of  ambassadors  is  still  adhered  to. 

Foreign  governments  have  sought  from  time  to  time 
to  follow  the  European  practice  in  their  relations  with 
the  United  States.  As  early  as  1802  our  minister  in 
London,  Rufus  King,  reported  to  the  secretary  of  state 
that  the  British  Foreign  Of&ce  had  consulted  him  about 
the  appointment  of  a  new  minister,  and  mentioned  to 
him  the  names  of  two  persons  which  it  had  under  con- 
sideration  for   the  place ;   and  that  he  indicated  his 

1  Senate  Ex.  Doc.  4,  49th  Cong.,  1st  Sess.  10. 


-J        -lit        M^      i    , 

_^^     -jL      \J      \   i      <?    f     ■»  / 


A  '  4 


38  THE  PRACTICE  OF  DIPLOMACY 

preference  for  one  of  them,  who  was  accordingly  ap- 
pointed.^ It  turned  out,  however,  that  Mr.  King's 
choice  was  most  unfortunate,  as  he  indicated  Mr.  Merry, 
who  was  the  source  of  much  annoyance  to  President 
Jefferson  and  Secretary  Madison.^ 

Similar  instances  are  reported  of  the  efforts  of  foreign 
governments,  in  later  years,  to  consult  as  to  the  accepta- 
bility of  proposed  ministers,  and  the  custom  of  the 
Department  of  State  has  been,  when  such  notice  was 
given,  to  state  "  that  this  goverment  does  not  require 
other  powers  to  ask  in  advance  if  contemplated  appoint- 
ments of  ministers  will  or  will  not  be  acceptable ; "  but 
where  objections  are  known  to  exist  it  has  been  deemed 
proper  to  communicate  them  in  reply.  It  would  seem 
that  if  there  is  good  reason  for  consulting  the  foreign 
government  before  the  appointment  of  ambassadors,  the 
reason  would  also  apply  in  the  appointment  of  ministers. 
The  cases  which  follow  show  that  such  a  practice  would 
often  avoid  embarrassment  for  the  secretary  of  state  and 
mortification  to  the  person  nominated. 

Every  government  has  the  right  to  refuse  to  receive 
any  diplomatic  representative  whom  it  regards  as  objec- 
tionable, and  it  is  not  required  to  give  the  reasons  for 
its  actions,  although  they  are  generally  made  known. 
It  is  considered  the  duty  of  the  nominating  government 
to  accept  this  action,  whether  or  not  it  regards  the 
reasons,  if  given,  satisfactory.  The  reasons  given  are 
generally  of  a  personal  character,  but  the  political  opin- 
ions  of   the  person   nominated,   social    conditions,   or 

»  4  Life  and  Correspondence  of  Rufus  King  (1897),  100. 

'  A  Century  of  American  Diplomacy,  by  John  W.  Foster,  211,  220. 


THE  APPOINTMENT  OF  DIPLOMATS  39 

resentment  toward  the  government  making  the  nomina- 
tion, sometimes  influence  the  rejection.  It  was  a  rule 
of  the  British  court  in  Queen  Victoria's  reign  that  a 
divorced  person  would  not  be  received,  and  the  am- 
bassador of  a  great  power  was  rejected  because  he  had 
married  a  lady  divorced  from  her  former  husband.^ 

Several  instances  have  occurred  of  the  rejection  of 
American  ministers  appointed  to  foreign  governments. 
An  examination  of  some  of  these  cases  will  illustrate 
the  causes  which  are  recognized  by  governments  as  jus- 
tifying their  conduct.  The  earliest  of  these  is  the  case 
of  Charles  C.  Pinckney  of  South  Carohna,  a  person  of 
high  character  and  eminent  services,  who  was  in  1796 
appointed  minister  to  France  to  succeed  James  Monroe, 
whose  recall  by  President  Washington  had  greatly  dis- 
pleased the  French  Directory.  In  order  to  show  its 
resentment,  the  Directory  refused  to  receive  Mr.  Pinck- 
ney, treated  him  with  great  discourtesy,  and  ordered 
him  to  quit  the  country.^  Mr.  Pinckney  afterwards 
served  in  the  Commission  of  1797  to  adjust  our  differ- 
ences with  France.  To  him  was  attributed  the  utterance 
which  became  famous  :  "  Millions  for  defense,  but  not 
one  cent  for  tribute;"  and  the  words  have  been  inserted 
on  the  tablet  to  his  memory  in  his  native  city.  But  it 
is  now  known  that  the  expression  was  not  used  by  him, 
but  by  a  friend  in  a  eulogy  upon  his  career.^ 

Anson   Burlingame,    a   member  of   Congress   from 

1  Schuyler's  American  Diplomacy,  155. 

^  For  Monroe's  mission  and  recall,  see  Foster's  American  Diplomacy, 
172-176. 

3  South  Carolina  Historical  Mag.,  January,  1900,  100. 


40  THE  PRACTICE  OF  DIPLOMACY 

Massachusetts,  was  appointed  by  President  Lincoln  in 
1861  minister  to  Austria.  On  his  arrival  at  Paris,  en 
route  to  his  post  at  Vienna,  he  reported  to  the  Depart- 
ment of  State  that  the  secretary  of  Prince  Metternich, 
Austrian  ambassador  to  France,  called  on  the  secretary 
of  the  American  legation  with  the  message  that  the 
prince  would  be  pleased  to  have  Mr.  Burlingame  remain 
at  Paris  until  the  way  might  be  clear  for  his  presen- 
tation at  Vienna.  Mr.  Burlingame  stated  to  the  de- 
partment that  the  trouble  probably  sprang  from  his 
authorship  and  advocacy  of  the  bill  raising  the  Sardinian 
mission  from  minister  resident  to  minister  plenif>oten- 
tiary,  taken  in  connection  with  his  well-known  senti- 
ments in  favor  of  the  Italians.  He  had  likewise  been 
an  ardent  friend  of  Hungarian  independence.  He  added 
this  comment :  "  If  the  Austrian  government  choose  to 
make  an  issue  .  .  .  involving  the  assumption,  on  her 
part,  of  the  right  to  demand  that  we  should  send,  not 
an  American,  but  an  Austrian,  in  feeling,  she  will,  in 
my  opinion,  prove  weak  where  she  has  been  strongest 
in  her  diplomacy."  He  proposed  to  the  department  to 
go  on  to  Vienna  and  force  a  decision,  but  Secretary 
Seward  concluded  that  the  better  solution  was  to  trans- 
fer him  to  China,  a  course  which  resulted  in  greatly 
enhancing  his  usefulness  and  fame.^ 

The  case  of  A.  M.  Keiley,  a  prominent  lawyer  of 
Virginia,  is  one  which  occasioned  a  lengthy  correspond- 
ence and  attracted  much  attention.  He  was  appointed 
minister  to  Italy  by  President  Cleveland  in  March,  1885, 

1  For  Mr.  Burlingame's  later  career,  see  American  Diplomacy  in  the 
Orient,  by  John  W.  Foster,  257,  etc. 


THE  APPOINTMENT  OF  DIPLOMATS  41 

and  confirmed  by  the  Senate,  April  2.  Ten  days  after 
his  confirmation  an  account  appeared  in  a  New  York 
city  newspaper  giving  a  report  of  a  public  indignation 
meeting  held  in  a  Catholic  church  in  Richmond,  Vir- 
ginia, in  1871,  after  the  occupation  of  Rome  by  the 
king  of  Italy.  Mr.  Keiley  was  chairman  of  a  committee 
which  brought  in  a  resolution,  adopted  by  the  meeting, 
"protesting  against  the  invasion  and  spoliation  of  the 
States  of  the  Church  by  King  Victor  Emmanuel  as  a 
crime  against  solemn  treaties,"  and,  in  advocating  it, 
Mr.  Keiley  made  a  bitter  attack  upon  the  king. 

The  Italian  minister  in  Washington  lost  no  time  in 
bringing  the  publication  to  the  attention  of  his  govern- 
ment, which  instructed  him  by  cable  to  say  to  the 
American  government  that  it  was  impossible  that  Mr. 
Keiley  "  might  be  a  persona  grata  to  our  king,"  and 
expressing  the  hope  that  the  United  States  government 
would  be  willing  to  bestow  a  new  proof  of  sincere  amity 
in  appointing  another  candidate  as  its  representative  at 
Rome.  Mr.  Bayard,  secretary  of  state,  recognized  the 
right  of  Italy  to  object,  Mr.  Keiley  tendered  his  resig- 
nation, and  the  incident  was  closed  so  far  as  Italy  was 
concerned,  but  it  only  opened  a  new  and  more  interest- 
ing chapter  in  diplomacy. 

The  day  after  the  tender  of  his  resignation  as  minis- 
ter to  Italy,  Mr.  Keiley  was  nominated  as  minister  to 
Austria,  and  he  was  promptly  confirmed  by  the  Senate. 
On  May  4  Secretary  Bayard  notified  the  Austrian  min- 
ister in  Washington  of  the  appointment  and  bespoke 
for  him  "  that  favorable  reception  at  Vienna  which  is 
due  to  his  merits  as  an  American  citizen  of  great  ability 


42  THE  PRACTICE  OF  DIPLOMACY 

and  character."  Within  four  days  a  cabled  notification 
in  writing  was  delivered  to  Secretary  Bayard  "  that  here 
[in  Vienna]  too,  like  in  Rome,  prevail  scruples  against 
the  choice,"  and  he  was  earnestly  entreated  that  the 
newly  nominated  minister  might  not  reach  Vienna  "  be- 
fore our  confidential  consent  to  his  nomination  has 
taken  place  ;  "  and  it  was  added  that  "  the  position  of 
a  foreign  envoy  wedded  to  a  Jewess  by  civil  marriage 
would  be  untenable  and  even  impossible  in  Vienna." 
But  Mr.  Keiley  had  sailed  for  his  post  before  the  notifi- 
cation was  received. 

After  a  delay  of  ten  days  Secretary  Bayard  sent  the 
Austrian  minister  in  Washington  a  long  and  caustic 
note,  in  which,  referring  to  the  ground  of  objection 
that  Mr.  Keiley's  wife  was  a  Jewess,  he  stated  that  such 
an  objection  could  not  be  assented  to  as  valid  by  the 
American  government  or  people,  but  must  be  emphati- 
cally and  promptly  denied  ;  "  that  "  reHgious  liberty  is 
the  chief  cornerstone  of  the  American  system  of  govern- 
ment .  .  .  imbedded  in  the  written  charter  and  inter- 
woven in  the  moral  fabric  of  its  laws  ; "  that  a  contrary 
doctrine  cannot  "  for  a  moment  be  accepted  by  the 
great  family  of  civilized  nations  or  be  allowed  to  control 
their  diplomatic  intercourse."  While  Mr.  Bayard  re- 
cognized "  the  undoubted  right  of  rejection,"  he  "most 
earnestly  and  respectfully  craved  the  Austrian  govern- 
ment to  reconsider  its  views."  Apparently  not  satisfied 
with  the  fullness  of  his  first  communication,  it  was  fol- 
lowed two  days  later  by  a  second  note  in  which  he  set 
forth  the  practice  of  the  United  States  not  to  consult  a 
foreign  government  as  to  the  acceptability  of  a  minister 


THE  APPOINTMENT  OF  DIPLOMATS  43 

in  advance  of  his  appointment,  and  proceeded  to  show 
that  there  were  important  reasons  why  the  European 
practice  had  never  been  adopted  by  his  government. 

These  letters  led  the  Austrian  government  to  modify 
the  ground  of  its  objection.  It  declined  to  conduct  a 
discussion  with  the  government  of  the  United  States 
upon  religious  liberty  and  diplomatic  law,  *^as  in 
Austria  as  well  there  was  entire  liberty  of  religious  wor- 
ship." The  objection  to  Mr.  Keiley's  reception  was 
then  stated  to  be  "  founded  upon  want  of  political  tact 
evinced  on  his  part  on  a  former  occasion,  in  consequence 
of  which  a  friendly  power  declined  to  receive  him ;  and 
upon  the  certainty  that  his  domestic  relations  preclude 
that  reception  of  him  by  Vienna  society  which  we  judge 
desirable  for  the  representative  of  the  United  States." 
The  correspondence  and  discussion  continued  through 
several  months,  the  Austrian  government  remaining 
firm  in  its  opposition  to  Mr.  Keiley's  reception,  and, 
meanwhile,  he  had  arrested  his  journey  and  sojourned 
in  Paris,  until  he  finally,  and  for  the  second  time, 
tendered  his  resignation,  and  was  provided  with  a  post 
on  the  International  Court  in  Egypt,  a  place  where  the 
rules  of  diplomatic  etiquette  could  not  follow  him.  The 
government  of  the  United  States  showed  its  resentment 
by  leaving  the  legation  at  Vienna  in  charge  of  a  secre- 
tary for  some  time  afterwards.^ 

One  more  instance  may  be  cited  to  illustrate  the 

^  For  official  correspondence,  see  Senate  Ex.  Doc.  4,  49th  Cong.,  1st 
Sess.  After  a  long  and  honorable  service  on  the  Egyptian  International 
Court,  Mr.  Keiley  lost  his  life  in  Paris  in  1905,  by  being  run  over  by  an 
automobile. 


44  THE  PRACTICE  OF  DIPLOMACY 

grounds  of  objection  advanced  for  the  rejection  of  a 
minister.  Hon.  Henry  W.  Blair,  on  the  expiration  of  a 
long  term  of  service  in  the  Senate  of  the  United  States, 
was  appointed  by  President  Harrison  in  1891  minister 
to  China,  was  confirmed  by  the  Senate,  and  he  set  out 
for  his  post  at  Peking.  Meanwhile,  the  newspapers  had 
published  extracts  from  the  debates  in  the  Senate,  show-, 
ing  that  Mr.  Blair  had  compared  the  coming  of  Chinese 
laborers  to  the  United  States  to  the  introduction  of 
yellow  fever,  and  contended  that  their  exclusion  was 
the  exercise  of  a  similar  "  power  by  which  we  exclude 
by  national  force  pestilential  diseases  from  any  portion 
of  the  country ;  "  and  had  referred  to  the  Chinese  of 
San  Francisco  as  "the  seeds  of  death,  unless  the  upas 
plant  could  be  rooted  up  and  extirpated." 

The  Chinese  government,  upon  being  informed  of 
these  publications,  instructed  its  minister  in  Washing- 
ton to  say  to  the  secretary  of  state  that  as  Mr.  Blair 
"  had  bitterly  abused  China  in  the  Senate,  .  .  .  and 
was  conspicuous  in  helping  to  pass  the  oppressive  ex- 
clusion act,"  his  coming  as  minister  "might  be  detri- 
mental to  the  intercourse  of  the  two  nations ; "  and  to  re- 
quest that  somepersona  grata  be  appointed  in  his  stead. 
The  acting  secretary  of  state  insisted  with  the  Chinese 
minister  that  the  newspaper  publication  had  done  Mr. 
Blair  injustice,  as  he  had  shown  himself  friendly  to  the 
Chinese  people  and  government,  notwithstanding  he 
had  voted  for  the  law  excluding  Chinese  laborers,  and 
asked  that  his  government  would  suspend  its  decision 
until  an  opportunity  could  be  afforded  to  make  this 
clear. 


THE   APPOINTMENT  OF  DIPLOMATS  45 

This  request  was  cabled  to  Peking,  but  the  answer 
was  returned  that  though  it  was  possible  that  some  of 
the  newspaper  reports  had  been  erroneous,  it  was  an 
undoubted  fact  that  Mr.  Blair  had  voted  for  the  law 
known  as  the  Scott  exclusion  act,  which  openly  violated 
an  existing  treaty,  and  was  passed  at  a  time  when  new 
negotiations  were  in  progress;  and  that  the  state  of 
feeling  in  China  was  so  bitter  it  would  not  be  advisable 
to  receive  Mr.  Blair  as  minister.  It  was  added  that  "  the 
Chinese  government  has  always  been  anxious  to  pre- 
serve the  very  best  and  friendliest  relations  with  the 
United  States,  and  has  always  tried  to  treat  its  ministers 
with  the  greatest  consideration  and  confidence,  and  it 
will  be  very  sorry  if  its  conduct  in  this  matter  is  not 
agreeable  to  the  President."  Mr.  Blair  was  recalled 
before  he  had  sailed  from  the  Pacific  port,  and  resigned 
his  commission,  although  contending  that  he  had  been 
misrepresented  and  was  the  victim  of  a  personal  con- 
spiracy.^ 

The  appointments  to  the  diplomatic  service  of  the 
United  States  are  by  the  Constitution  vested  in  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate. 
Before  the  adoption  of  the  Constitution  the  choice  of 
foreign  ministers  was  made  by  the  Continental  Con- 
gress, and  the  election  sometimes  occasioned  long  and 
earnest  contests ;  for  instance,  the  balloting  which  re- 
sulted in  the  selection  of  John  Adams  as  commissioner 
to  negotiate  peace  with  Great  Britain  occupied  two 
sittings  of  Congress.  In  the  first  Congress  under  the 
Constitution  a  question  was  raised  whether  or  not  the 

1  For  correspondence,  Senate  Ex.  Doc.  98,  52d  Cong.,  1st  Sess. 


46  THE   PRACTICE   OF  DIPLOMACY 

nominations  of  the  President  should  be  communicated 
orally,  and  the  advice  and  consent  of  the  Senate  thereto 
be  given  in  the  presence  of  the  President,  but  this  method 
was  never  followed. 

Justice  Story  records  that  in  1813  the  Senate  ap- 
pointed a  committee  to  hold  a  conference  with  Presi- 
dent Madison  respecting  his  nomination  of  a  minister 
to  Sweden,  then  before  it  for  confirmation.  But  he 
declined  it,  considering  that  it  was  incompatible  with 
the  due  relations  between  the  executive  and  other 
departments  of  the  government.  It  is,  however,  not 
unusual  for  the  President,  upon  receiving  an  intimation 
that  the  Senate  is  opposed  to  a  nomination,  to  withdraw 
the  same  from  the  Senate. 

Another  question  early  mooted  was  whether  or  not 
under  the  Constitution  the  Senate  possessed  the  right 
to  negative  the  grade  of  a  diplomatic  nomination  as 
well  as  the  person  named.  Mr.  Jefferson  was  of  the 
opinion  that  the  Senate  had  no  such  right.  In  the  early 
history  of  the  country  the  appropriations  by  Congress 
for  the  diplomatic  service  were  for  a  lump  sum,  and 
the  President  determined  the  grade  and  salary  of  the 
representatives  sent  to  the  various  nations  with  which 
we  maintained  diplomatic  intercourse ;  and  it  does  not 
appear  that  the  Senate  ever  questioned  his  action  in 
this  respect.  But  later  the  diplomatic  appropriation 
bills  fixed  both  the  grade  and  the  salary,  and  this  prac- 
tice has  been  uniformly  followed  for  many  years.^ 

•  The  first  appropriation  act  of  Congress  to  meet  the  expense  of  our 
foreign  intercourse,  that  of  July  1,  1790,  was  as  follows  :  — 

"  That   the  President  of  the  United  States  shall  be,  and  is  hereby 


THE  APPOINTMENT  OF  DIPLOMATS  47 

The  posts  of  ambassadors  and  ministers  to  the  leading 
nations  stand  in  political  signification  next  in  importance 
and  honor  to  the  cabinet  places,  and  the  selections  are 
made  matter  of  careful  examination  by  the  President  and 
secretary  of  state,  and  are  often  the  subject  of  cabinet 
consideration  before  the  nominations  are  sent  to  the 
Senate.  The  action  of  President  John  Adams  in  sending 
in  the  nomination  of  a  minister  to  France,  after  diplo- 
matic relations  had  been  broken  off,  without  consulting 
his  cabinet,  was  severely  criticised,  and  caused  a  serious 
breach  with  his  party .^ 

Unlike  its  action  upon  treaties,  the  confirmation  of  a 
diplomatic  appointment  is  made  upon  a  majority  vote 
of  the  Senate.  Diplomatic  of&cials  are  sometimes  ap- 
pointed during  the  recess  of  the  Senate,  in  which  case 
the  appointee  usually  goes  without  delay  to  his  post, 
and  the  nomination  is  sent  to  the  Senate  when  it  next 
assembles.  In  rare  instances  the  nomination  has  failed 
of  confirmation,  which  works  the  recall  of  the  appointee. 
The  most  notable  instances  of  this  character  are  the 
appointments  of  Messrs.  Gallatin  and  Van  Buren. 

Albert  Gallatin,  while  holding  the  post  of  secretary 
of  the  treasury,  was  appointed  by  President  Madison, 
in  1813,  jointly  with  John  Quincy  Adams  and  James 

authorized  to  draw  from  the  treasury  of  the  United  States  a  sum  not 
exceeding  forty  thousand  dollars  annually,  to  be  paid  out  of  the  monies 
arising  from  the  duties  on  imports  and  tonnage,  for  the  support  of  such 
persons  as  he  shall  commission  to  serve  the  United  States  in  foreign  parts, 
and  for  the  expense  incident  to  the  business  in  which  they  may  be  em- 
ployed." .  .  . 

The  growth  of  the  service  may  be  seen  from  the  amount  carried  in  the 
diplomatic  and  consular  appropriation  for  the  year  1906,  to  wit,  $2,950,000. 
^  Nomination  of  Vans  Murray,  Foster's  American  Diplomacy,  178. 


48  THE  PRACTICE   OF  DIPLOMACY 

A.  Bayard,  a  commissioner  to  negotiate  at  St.  Peters- 
burg a  treaty  of  peace  with  Great  Britain  and  a  com- 
mercial treaty  with  Russia.  He  was  given  a  leave  of 
absence  from  the  treasury,  repaired  to  St.  Petersburg, 
and  entered  upon  the  negotiations.  When  the  Senate 
convened  the  nomination  of  the  commissioners  was 
submitted  for  confirmation,  and  after  debate  Messrs. 
Adams  and  Bayard  were  confirmed  and  Mr.  Gallatin 
was  rejected.  The  ground  for  this  action  was  that,  while 
still  holding  the  office  of  secretary  of  the  treasury,  he 
could  not  accept  another  appointment,  although  per- 
sonal partisanship  entered  largely  into  the  opposition. 
Mr.  Gallatin  soon  after  resigned  the  treasury  portfolio, 
and  was  nominated  and  confirmed  one  of  the  commis- 
sioners to  negotiate  peace  with  Great  Britain.  He  after- 
wards held  the  missions  to  France  and  to  Great  Britain.^ 
Following  the  break-up  in  the  fii-st  cabinet  of  Presi- 
dent Jackson  in  1831,  Martin  Van  Buren,  secretary  of 
state,  was  appointed  minister  to  Great  Britain  during 
the  recess  of  the  Senate.  On  reassembhng  the  nomina- 
tion was  sent  to  that  body  for  confirmation,  Mr.  Van 
Buren  having  already  entered  on  his  duties  in  London. 
The  nomination  occasioned  a  lengthy  and  acrimonious 
debate,  inspired  in  part  by  the  cabinet  dissensions ;  but 
the  main  ground  of  opposition  was  the  charge  that 
when  secretary  of  state,  Mr.  Van  Buren  had  given  an 
instruction  to  the  American  minister  in  London  to  com- 
municate statements  to  the  British  foreign  secretary  of 
an  improper  character  relative  to  domestic  pohtics.  The 
nomination  was  rejected,  but  Mr.  Van  Buren  returned 

1  Life  of  Albert  Gallatin,  by  Henry  Adams  (1879),  483  S. 


THE  APPOINTMENT  OF  DIPLOMATS  49 

home  to  receive  the  plaudits  of  his  party  and  to  succeed 
his  chief  as  President  of  the  United  States.^ 

The  laws  of  the  United  States  forbid  the  appointment 
of  any  one  other  than  a  citizen  of  the  United  States  in 
its  diplomatic  service.  It  is  also  a  rule  of  the  Depart- 
ment of  State  that  no  citizen  of  the  United  States  shall 
be  received  by  it  as  the  diplomatic  representative  of  a 
foreign  government,  but  this  rule  is  of  a  flexible  char- 
acter in  its  application.  Anson  Burlingame,  who  for 
some  years  had  acted  as  the  American  minister  in  China, 
resigned  to  accept  from  the  Chinese  government  the 
post  of  special  ambassador  to  the  United  States  and  cer- 
tain European  governments.  He  was  received  as  such 
in  Washington,  and  Secretary  Fish  negotiated  with  him  . 
and  his  colleagues  an  important  treaty. 

Mr.  Camacho,  a  native  of  Venezuela  but  a  naturalized 
citizen  of  the  United  States,  was  accepted  as  minister 
from  Venezuela  in  1880,  on  renewal  of  relations  with 
that  country,  which  had  been  for  sometime  suspended.^ 
On  the  other  hand.  General  O'Bierne,  a  prominent  citi- 
zen of  New  York,  was  accredited  as  diplomatic  repre- 
sentative of  the  Transvaal  Republic  to  the  United  States 
at  the  outbreak  of  hostilities  with  Great  Britain ;  and 
the  secretary  of  state,  applying  the  rule,  declined  to 
receive  him  on  the  ground  of  his  American  citizenship, 
thus  avoiding  the  question  of  the  reception  of  a  repre- 
sentative of  a  country  which  the  British  government 
claimed  was  a  suzerain  state. 

^  Martin  Van  Buren  (in  Statesmen  Series),  by  Edward  M.  Shepard, 
187,  195 ;   1  Benton's  Thirty  Years  in  the  Senate,  ch.  59. 
2  1  Wharton's  Digest,  628. 


60  THE  PRACTICE  OF  DIPLOMACY 

In  late  years  a  practice  grew  up  of  securing  the  inser- 
tion in  the  "  Diplomatic  List,"  published  monthly  by 
the  State  Department,  of  the  names  of  resident  attor- 
neys of  Washington  as  counselors  of  certain  legations 
of  the  less  important  countries.  The  main  object  of 
such  insertion  was  to  secure  thereby  invitations  for  the 
persons  named  and  their  wives  to  the  receptions  and 
teas  given  at  the  White  House.  When  the  attention  of 
Secretary  Root  was  called  to  the  practice  he  directed  it 
to  be  discontinued,  basing  his  action  on  the  rule  above 
cited,  that  an  American  citizen  could  not  be  clothed 
with  a  diplomatic  character  in  a  foreign  legation  in 
Washington. 

An  envoy  receives  notice  from  the  secretary  of  state 
of  his  appointment  after  confirmation  by  the  Senate, 
when  he  is  expected  to  signify  his  acceptance,  execute 
the  oath  of  office  and  forward  it  to  the  Department  of 
State.  He  is  then  allowed  by  law  not  exceeding  thirty 
days  under  pay  to  arrange  his  private  affairs  and  receive 
his  instructions.  The  latter  are  sometimes  sent  to  him 
in  writing  by  mail,  when  the  appointee  is  absent  from 
the  country  or  other  satisfactory  reasons  exist.  But 
usually  he  is  expected  to  come  to  Washington  for 
personal  conference  with  the  secretary  of  state  and  to 
examine  the  correspondence  in  the  department  relative 
to  the  subjects  and  questions  pending  in  the  mission. 
This  visit  also  affords  him  an  opportunity  to  make  the 
acquaintance  of  the  resident  envoy  of  the  country  to 
which  he  is  to  be  accredited,  as  well  as  to  offer  his  re- 
spects to  the  President,  a  duty  which  the  envoys  of  all 
governments  pay  to  the  head  of  the  state  on  accepting 


THE  APPOINTMENT  OF  DIPLOMATS  51 

office.    This  ceremony  of  visiting  the  head  of  the  state 
is  termed  in  England  "  Kissing  hands." 

Before  the  departure  for  his  post  an  envoy  is  fur- 
nished his  credentials  or  letters  of  credence,  signed  by 
the  President,  attested  by  the  secretary  of  state,  with 
the  great  seal  attached,  and  addressed  to  the  sovereign 
or  chief  of  the  state  to  which  he  is  accredited,  and  he 
is  also  supplied  an  "  office  copy  "  of  the  same.  It  will 
be  of  interest  in  this  connection  to  reproduce  the  first 
letter  of  credence  ever  issued  by  the  government  of  the 
United  States  to  a  regularly  accredited  minister  pleni- 
potentiary—  that  of  Benjamin  Franklin  to  the  court  of 
France.  The  last  paragraph  is  substantially  the  phrase- 
ology used  at  the  present  day  for  similar  letters. 

Great,  Faithful  and  Beloved  Friend  and  Ally. 

The  Principles  of  Equality  and  Reciprocity  on  which 
you  have  entered  into  Treaties  with  us,  give  you  an  ad- 
ditional security  for  that  good  Faith  with  which  we  shall 
observe  them  from  motives  of  Honour  and  of  affection 
to  your  Majesty.  The  distinguished  part  you  have 
taken  in  the  support  of  the  Liberties  and  Independence 
of  these  States  cannot  but  inspire  them  with  the  most 
ardent  wishes  for  the  Interest  and  the  Glory  of  France. 

We  have  nominated  Benjamin  Franklin,  Esquire,  to 
reside  at  your  court,  in  quality  of  our  Minister  Plenipo- 
tentiary, that  he  may  give  you  more  particular  assur- 
ances of  the  grateful  sentiments  which  you  have  excited 
in  us  and  in  each  of  the  United  States.  We  beseech 
you  to  give  entire  credit  to  everything  which  he  shall 
dehver  on  our  Part,  especially  when  he  shall  assure  you 


62  THE  PRACTICE  OF  DIPLOMACY 

of  the  Permanency  of  our  Friendship  and  we  pray  God 
that  he  will  keep  your  Majesty  our  great,  faithful  and 
beloved  Friend  and  Ally  in  his  most  holy  Protection. 
Done  at  Philadelphia  the  twenty-first  day  of  October, 
1778. 

By  the  Congress  of  the  United  States  of  North 
America,  your  good  Friends  and  Allies, 

Henry  Laurens, 

President. 
Attest :  Chas.  Thompson,  Sec. 
To  our  Great,  faithful  and  beloved  Friend  and  Ally 
Louis  the  Sixteenth,  King  of  France  and  Navarre. 

In  addition  to  his  letter  of  credence,  the  envoy  is  also 
given  such  written  instructions  as  are  called  for  by  the 
business  of  the  mission,  and  the  usual  Printed  Instruc- 
tions of  the  department  to  diplomatic  officers,  contain- 
ing minute  details  as  to  the  duties  of  the  office,  as  well 
as  a  special  passport  for  himself,  his  family,  and  his 
suite. 

Under  the  early  practice  of  the  government  a  minis- 
ter was  allowed  on  his  appointment  a  special  sum  for 
his  "  outfit,"  as  well  as  his  "  infit ;  "  but  this  has  long 
since  been  abolished  by  Congress,  because  of  its  abuse,^ 

1  "  In  September,  1829,  John  Eandolph  of  Virginia  was  offered  and 
accepted  the  mission  to  Russia;  he  sailed  in  June,  1830  ;  remained  ten 
days  at  his  post;  then  passed  near  a  year  in  England;  and,  returning  home 
in  October,  1831,  drew  $21,407  from  the  government,  with  which  he  paid 
off  his  old  British  debt.  This  act  of  Roman  virtue,  worthy  of  the  satire 
of  Juvenal,  still  stands  as  the  most  flagrant  bit  of  diplomatic  jobbery  in 
the  annals  of  the  United  States  government."  —  Life  of  John  Randolph 
(American  Statesmen  Series),  by  Henry  Adams,  296. 


THE  APPOINTMENT  OF  DIPLOMATS  53 

and  his  only  compensation  is  his  salary,  which  begins 
thirty  days  before  his  departure  from  the  country.  He 
is  limited  by  the  Printed  Instructions  in  the  time  which 
he  shall  occupy  in  going  to  his  post,  but  this  "  traveling 
time  "  is  arranged  upon  a  liberal  scale,  as,  for  instance, 
there  is  allowed  to  make  the  journey  to  London  twenty 
days,  Vienna  thirty  days,  Constantinople  forty,  Japan 
forty,  and  China  sixty. 

His  legation  is  advised  of  the  date  of  his  expected 
arrival,  and  the  local  government,  upon  being  informed, 
extends  to  him  and  his  suite  the  proper  courtesies, 
including  the  free  dispatch  at  the  custom  house  of 
his  personal  effects  without  examination.  If  required 
en  route  to  pass  through  a  country  other  than  the  one  to 
which  he  is  accredited,  an  envoy  is  accorded  free  passage 
and  custom-house  courtesies,  but  this  is  regarded  as 
a  matter  of  comity  and  not  of  right.  If  the  country 
through  which  he  is  to  pass  is  at  war,  it  can  prescribe 
the  route  which  he  must  take. 

The  case  of  Mr.  Soule,  American  minister  to  Spain, 
illustrates  the  hmitations  under  which  the  privilege  of 
free  transit  may  sometimes  be  exercised.  Mr.  Soule, 
born  in  France  but  a  naturalized  citizen  of  Louisiana, 
being  of  a  fiery  temperament,  soon  after  his  arrival 
in  Madrid  took  affront  at  the  conduct  of  the  French 
ambassador,  which  resulted  in  two  duels,  one  between 
Soule's  son  and  the  Duke  of  Alva,  the  brother-in-law 
of  the  Emperor  Napoleon  III,  and  the  other  between 
Soule  and  the  French  ambassador.  After  these  events, 
in  1854,  the  American  minister,  under  orders  from 
Washington,  spent  two  weeks  in  Paris,  and  went  thence 


54  THE  PRACTICE  OF  DIPLOMACY 

to  London  for  conference  with  the  American  minister. 
While  returning  to  his  post  he  was  met  at  Calais  by  the 
commissioner  of  police,  and  told  that  he  "  would  not  be 
allowed  to  penetrate  into  France  without  the  knowledge 
of  the  government  of  the  Emperor,"  and  the  police 
commissioner  immediately  communicated  with  Paris  for 
further  instructions.  Mr.  Soule  refused  to  remain  in 
Calais,  but  returned  at  once  to  England,  telling  the 
police  officer  "that  he  did  not  expect  any  regard  on 
the  part  of  the  French  government,  and  that,  besides, 
he  did  not  care  for  it." 

The  American  minister  at  Paris  complained  to  the 
French  government  of  this  action,  and  received  an 
answer  that  the  government  recognized  the  privilege  of 
an  envoy  of  the  United  States  to  traverse  French  terri- 
tory in  order  to  repair  to  his  post,  but  that  Mr.  Soule's 
antecedents  awakened  the  attention  of  the  authorities 
"  whose  duty  it  is  to  preserve  public  order  amongst  us;  " 
that  if  he  was  going  direct  to  Madrid,  the  route  by 
France  was  open  to  him,  but  that  the  privilege  of 
remaining  in  Paris  would  not  be  accorded  to  him.  The 
French  government  was  informed  that  Mr.  Soule  had 
no  intention  of  remaining  in  France.  He  resumed  his 
journey,  passing  through  Paris  en  route  to  Madrid, 
and  the  incident  was  ended.  It  simply  afforded  Louis 
Napoleon  the  opportunity  and  gratification  of  manifest- 
ing his  hostility  towards  an  intemperate  diplomatist.^ 

1  Senate  Ex.  Doc.  1,  33d  Cong.,  2d  Sess.  22-28. 


CHAPTER  IV 

THE   RECEPTION   OF   ENVOYS 

The  American  diplomatic  representative  goes  to  his 
post  with  no  display,  and  much  as  a  private  gentleman 
makes  a  visit  abroad.  In  this  respect  a  great  change 
has  taken  place  in  modern  times.  When  Sully,  the 
minister  of  King  Henry  of  Navarre,  went  on  his  mis- 
sion to  Queen  Elizabeth,  he  took  to  England  a  retinue 
of  two  hundred  gentlemen.  Ambassador  Bassompierre 
speaks  of  an  "  equipage  of  five  hundred "  returning 
with  him  to  France.  When  Sully  reached  London,  he 
was  saluted  with  three  thousand  guns  from  the  Tower. 
D'Estrades,  ambassador  of  Louis  XIV,  reports  that  he 
was  met  at  Ryswick  by  the  deputies  of  Holland  with  a 
train  of  three-score  coaches-and-six. 

While  this  extravagant  display  has  given  place  in 
the  western  nations  to  more  official  simpHcity,  the  old 
diplomatic  order  of  things  still  lingers  in  the  Far 
East.  When  the  Viceroy  Li  Hung  Chang  went  to  Japan 
in  1895  to  sue  for  peace,  two  merchant  steamers  were 
chartered  to  carry  his  suite  of  one  hundred  and  thirty- 
five  persons  and  their  paraphernaHa.  The  Japanese 
embassy  which  visited  Peldng  in  1905,  to  negotiate  for 
an  adjustment  of  the  questions  growing  out  of  the 
Russo-Japanese  war,  was  attended  with  great  state.  The 
ambassador  and  his  suite,  whenever  they  moved  about, 


56  THE  PRACTICE  OF  DIPLOMACY 

were  accompanied  by  a  large  and  imposing  escort,  and 
the  ceremonial  observed  was  studiously  planned  to  im- 
press the  Chinese.  On  their  departure  they  bestowed 
liberal  gifts  of  money  upon  various  local  institutions, 
and  traveled  by  special  railway  train  with  a  miUtary 
guard. 

When  the  American  envoy  arrives  at  his  post,  his 
first  duty  is  to  put  himself  in  communication  with  the 
secretary  for  foreign  affairs.  His  predecessor  should, 
under  ordinary  circumstances,  remain  till  his  arrival, 
and  facilitate  his  induction  into  office,  but  in  his  ab- 
sence the  secretary  of  legation,  acting  as  charge  ad 
mterim,  arranges  for  a  personal  call  at  the  foreign 
office  to  pay  his  respects  to  the  secretary  or  minister  for 
foreign  affairs,  and  express  his  desire  to  present  his 
letter  of  credence  to  the  head  of  the  state ;  but  he  will 
also  send  the  secretary  a  formal  note  asking  for  such 
audience,  and  inclosing  an  "  office  copy "  of  his  cre- 
dentials. If  it  is  customary  at  the  capital  to  exchange 
formal  addresses  at  the  audience,  the  new  envoy  will 
also  inclose  with  his  note  a  copy  of  his  remarks ;  and 
when  advised  by  the  secretary's  note  in  reply  of  the 
time  of  audience,  a  copy  of  the  sovereign's  address  is 
inclosed. 

The  government  of  each  country  prescribes  the  cere- 
monial to  be  observed  at  the  audience  for  the  delivery 
of  the  envoy's  credentials,  and  there  is  no  uniformity 
even  in  the  courts  of  Europe.  In  most  countries  greater 
display  is  made  in  the  reception  of  ambassadors  than  of 
representatives  of  a  lower  grade.  In  aU  the  capitals  of 
Europe  there  is  an  official,  often  a  nobleman  of  high 


THE  RECEPTION  OF  ENVOYS  67 

rank,  variously  entitled  the  grand  chamberlain,  intro- 
ducer of  ambassadors,  or  master  of  ceremonies,  with  a 
bureau  of  assistants  and  clerks,  a  part  of  whose  busi- 
ness it  is  to  take  charge  of  the  ceremony  of  the  recep- 
tion of  envoys,  and  in  other  ways  to  assist  them  in  the 
duties  incident  to  their  installation  in  the  diplomatic 
body. 

It  is  to  him  the  new  envoy  applies  after  his  recep- 
tion to  ascertain  the  officials  of  the  government  upon 
whom  he  must  call,  to  learn  the  peculiar  customs  of  the 
diplomatic  body  and  of  society  at  that  court,  and  this 
functionary  is  expected  to  solve  such  momentous 
questions  as  the  order  of  seating  at  the  envoy's  table, 
or  the  proper  persons  to  be  invited  to  his  balls  or  other 
entertainments.  The  new  diplomats  coming  to  "Wash- 
ington have  often  felt  the  need  of  such  an  official,  and 
even  the  resident  people  of  society  would  be  grateful  to 
the  government  if  it  would  provide  them  some  author- 
ized person  who  could  solve  for  them  the  many  vexed 
questions  of  precedence  which  are  continually  arising. 
The  subject  of  a  code  of  official  precedence  has  often 
been  considered  at  the  Department  of  State,  but  as  yet 
no  secretary  of  state  has  had  the  courage,  in  the  face 
of  the  conflicting  claims,  to  issue  such  a  code  of  rules. 

When  the  time  for  the  new  envoy's  reception  is  deter- 
mined, he  is  waited  upon  by  the  master  of  ceremonies 
to  explain  the  formalities  to  be  observed,  and  on  the 
appointed  day  he,  or  some  official  representing  him, 
calls  at  the  hotel  or  residence  of  the  envoy  with  one  or 
more  state  carriages  to  conduct  him  and  his  suite  to  the 
palace.    In  some  countries  the  minister  is  allowed  to  go, 


58  THE  PRACTICE  OF  DIPLOMACY 

unescorted,  in  his  own  carriage.  If  the  envoy  has  the 
rank  of  ambassador,  he  is  usually  escorted  by  a  detach- 
ment of  cavalry,  and  the  carriages  which  take  him  and 
his  suite  are  drawn  by  six  horses. 

This  latter  distinction  is  among  the  last  reminders  of 
the  great  displays  formerly  made  at  court  in  honor  of 
ambassadors.  Most  of  these  have  fallen  into  disuse  with 
the  increasing  demand  of  the  present  age  for  greater 
simplicity,  but  several  of  the  courts  of  Europe  still  cling 
to  the  six-horse  ambassadorial  coach.  In  the  accounts 
of  the  great  Congress  of  Westphalia  and  other  confer- 
ences of  two  centuries  and  more  ago,  we  read  of  the 
great  number  of  coaches-and-six  which  were  a  part  of 
the  paraphernalia  of  the  respective  ambassadors,  the 
plenipotentiaries  of  the  king  of  France,  for  instance, 
explaining  the  delay  in  their  arrival  by  the  necessity  of 
stopping  en  route  to  secure  the  proper  number  of  suit- 
able horses  for  their  cavalcade  of  entrance. 

As  stated,  the  ceremony  at  the  reception  of  an  envoy 
is  regulated  in  each  country  by  its  government,  and 
there  is  no  uniformity  of  custom.  For  instance,  in 
Madrid,  where  ancient  usage  is  still  observed,  the  intro- 
ducer of  ambassadors  escorts  the  envoy  with  his  suite 
to  the  palace  with  state  carriages  and  a  troop  of  cavalry, 
and  leads  them  up  the  grand  stairway  lined  with  halber- 
diers into  the  throne  room,  where  is  the  sovereign  sur- 
rounded by  the  cabinet  and  royal  household  officials 
in  full  uniform.  When  the  doors  of  the  throne  room 
are  opened,  the  envoy  makes  a  bow  at  the  entrance, 
then  advances  half-way  to  the  royal  circle,  halts  and 
bows  again,  then   approaches  near  to  the  sovereign, 


THE  RECEPTION  OF  ENVOYS  69 

stops,  bows  a  third  time  and  proceeds  with  his  address. 
When  that  is  concluded,  the  envoy  deUvers  the  letter 
of  credence  of  the  President  into  the  hands  of  the 
sovereign,  who  passes  it  without  breaking  the  seal  to  the 
minister  of  foreign  affairs,  and  the  sovereign  reads  his 
address  in  reply.  After  a  few  minutes  of  informal  con- 
versation, the  audience  closes  with  the  withdrawal  of 
the  envoy  and  suite,  always  with  their  faces  to  the  royal 
circle,  and  a  return  down  the  grand  stairway  to  the 
coaches  and  through  the  streets,  accompanied  by  the 
introducer  of  ambassadors  and  the  cavalry  troop. 

Hannibal  Hamlin,  that  stout  "  Old  Eoman,"  who  dur- 
ing his  active  political  life  had  given  Httle  attention  to 
society  refinements,  when  he  retired  from  the  Senate 
was  appointed  minister  to  Spain  to  round  out  his  public 
services.  He  anticipated  the  ceremonial  of  his  reception 
by  King  Alfonso  with  considerable  trepidation,  and  it 
is  said  he  practiced  with  the  trained  secretary  of  legation 
the  manner  of  his  appearance  before  his  majesty,  with 
"  the  three  reverences  "  in  the  throne  room.  In  a  letter 
to  his  sons,  after  describing  the  manner  in  which  he  was 
escorted  to  the  palace,  he  says  :  "  I  think  you  would  have 
laughed  heartily  to  have  seen  your  plain  repubHcan 
father  toted  along  with  all  those  trappings  of  royalty. 
But  then  it  was  all  in  accordance  with  established  cus- 
tom and  had  to  be  performed.  There  was  nothing  for 
me  to  do  but  submit,  look  on,  and  reflect,  as  you  may  be 
sure  I  did."  He  closed  a  detailed  account  of  the  recep- 
tion as  follows :  "I  believe  I  made  no  mistake  or  blunder. 
Mr.  R.,  the  secretary,  complimented  me  on  the  manner 
in  which  I  went  through  the  ceremony.    On  the  whole,  I 


60  THE  PRACTICE  OF  DIPLOMACY 

was  glad  when  it  was  over."  *  As  might  be  anticipated, 
a  single  season  at  the  court  satisfied  him,  he  resigned 
his  commission,  and  returned  to  the  more  simple  life  of 
his  own  country. 

The  "  three  reverences,"  however,  are  not  so  severe  a 
test  of  one's  dexterity  as  that  of  conforming  to  the  court 
requirement  of  retiring  from  the  presentation  with  the 
face  always  turned  to  the  royal  presence,  as  was  demon- 
strated by  my  own  experience.  After  my  audience  of  the 
Emperor  Alexander  II,  I  was  received,  according  to 
custom,  by  the  Cesarevitch  (Alexander  HI)  and  by  the 
Cesarevena  (now  Empress  Dowager  Dagmar)  in  the  long 
hall  of  the  Anitchkoff  Palace.  After  a  very  pleasant 
interview  I  took  leave  of  them  and  began  my  backward 
retirement  to  the  other  end  of  the  hall,  with  my  face 
fixed  upon  the  Grand  Ducal  party,  who  stood  watching 
my  retrogression  and  to  receive  my  farewell  bow  as  I 
made  my  exit  from  the  door.  On  reaching  the  latter 
without  overturning  any  of  the  furniture,  I  seized  with 
my  hand  at  my  back  one  of  the  knobs  of  the  double 
door,  but  it  would  not  yield  to  my  pressure,  but  simply 
turned  round  and  round.  Presence  of  mind  left  me  in 
my  perplexity,  but  the  amused  Cesarevitch,  seeing  the 
cause  of  my  embarrassment,  shouted  out  in  good  Eng- 
lish reverberating  through  the  long  hall :  "  Mr.  Foster, 
take  the  other  knob ! "  The  door  then  yielded  to  my 
touch,  and  in  much  confusion  I  bowed  myself  out  of 
the  imperial  presence. 

Contrasted  with  the  envoy's  reception  in  Spain,  in  the 
great  Empire  of  Russia  the  ceremony  as  to  ministers  is 

'  Life  and  Times  of  Hannibal  Hamlin,  562. 


THE  RECEPTION  OF  ENVOYS  61 

much  more  simple.  The  envoy  usually  goes  to  the  pal- 
ace alone,  is  met  there  by  the  grand  master  of  ceremonies 
and  by  him  accompanied  to  the  emperor,  who  receives 
him  in  his  room,  where  he  is  left  alone  with  his  majesty. 
No  addresses  are  made,  but  after  a  few  words  the 
emperor  usually  asks  him  to  be  seated,  when  a  short 
informal  conversation  follows.  If,  however,  as  is  often 
the  case,  the  emperor  is  absent  from  the  capital,  at  one 
of  his  country  palaces,  the  envoy  is  accompanied  by 
the  grand  master  of  ceremonies,  or  his  assistant,  in 
an  imperial  railway  carriage,  and  is  lodged  and  enter- 
tained in  the  palace. 

The  estabhshment  of  the  ambassadorial  rank  for  and 
in  the  United  States  seems  to  have  caused  a  recrudes- 
cence of  the  ancient  diplomatic  ceremonial  which  had 
become  obsolete  and  regarded  as  unfitted  to  our  prac- 
tical age.  The  great  honors  shown  to  the  American 
ambassador  on  his  reception  by  King  Edward  VII  in 
1905  appear  to  have  surpassed  in  splendor  any  others 
of  recent  years.  The  reception  about  the  same  time  of 
the  new  American  ambassador  to  Russia  was  even  more 
resplendent,  which,  the  press  reports  say,  revived  the 
Old  World  pomp  and  ceremony  observed  at  the  court 
of  the  Romanoffs.  Having  journeyed  to  Tsarskoe  Selo 
in  an  imperial  train,  the  ambassador  and  his  suite  were 
met  at  the  station  by  the  grand  master  of  ceremonies 
and  a  number  of  court  officials.  Four  golden  state 
carriages  were  in  waiting,  the  one  occupied  by  the  am- 
bassador and  master  of  ceremonies  being  drawn  by  six 
white  stallions,  with  grooms  and  footmen  in  the  impe- 
rial scarlet  livery  and  with  outriders  on  either  side. 


62  THE  PRACTICE  OF  DIPLOMACY 

Arriving  at  the  Alexander  Palace,  the  minister  of 
foreign  affairs,  surrounded  by  the  court  officials  in  blaz- 
ing uniforms,  greeted  the  party.  The  ambassador  was 
first  presented  to  the  empress  mother,  to  whom  he  pre- 
sented the  embassy  staff.  Then,  preceded  by  the  master 
of  ceremonies,  bearing  his  staff  of  office,  and  a  solemn 
procession  of  court  functionaries,  the  ambassador  passed 
through  several  saloons  to  the  emperor's  private  apart- 
ments. Here  the  imperial  bodyguard  saluted.  In  the 
library  the  procession  halted,  and  the  doors  of  the  pri- 
vate reception  room  were  thrown  open  by  the  emperor's 
picturesque  turbaned  mamelukes,  and  as  the  represent- 
ative of  the  President  advanced  to  meet  the  emperor 
and  empress,  the  doors  closed  upon  them.  The  private 
audience  lasted  ten  minutes.  The  report  ends  with  the 
statement  that  the  occasion  marked  a  notable  departure 
from  the  custom  of  the  St.  Petersburg  court. 

It  appears  that  our  neighboring  republic  has  also 
caught  the  contagion  of  welcoming  the  "  new  world 
power"  into  the  ambassadorial  rank  with  royal  pomp, 
and  in  the  recent  reception  of  Ambassador  Conger  the 
government  of  Mexico  sought  to  vie  with  the  mon- 
archies in  tinsel  and  display.  The  procession  from  the 
ambassador's  hotel  to  the  National  Palace,  with  a  great 
array  of  the  military,  is  described  as  very  brilliant.  At 
one  end  of  the  ambassadors'  hall  the  president  and  his 
cabinet  stood,  supported  by  an  array  of  officers  in  mili- 
tary uniform.  At  the  other  end  of  the  hall  entered  the 
ambassador  between  the  general  chief  of  the  palace 
and  the  introducer  of  ambassadors,  followed  by  his  sec- 
retaries. 


THE  RECEPTION  OF  ENVOYS  63 

The  report  says  that  in  advancing  between  the  lane 
of  officers  the  ambassador  and  his  companion  made  the 
customary  three  bows,  which  were  returned  by  the  pre- 
sident and  his  ministers.  The  secretary  for  foreign 
affairs  advanced  several  yards  into  the  body  of  the  hall 
to  meet  the  ambassador  and  invited  him  to  approach 
within  the  cabinet  semicircle.  At  this  point  the  ambas- 
sador made  his  final  bow,  "which  was  low  and  cere- 
monious," and  then  delivered  his  credentials  and  his 
address. 

In  the  United  States  the  foreign  envoy  goes  in  his 
own  carriage  with  his  suite  to  the  Department  of  State, 
whence  he  is  accompanied  by  the  secretary  of  state 
without  display  to  the  White  House  and  into  the  Blue 
Room,  where  he  is  left  while  the  secretary  of  state 
goes  to  notify  the  President  of  his  arrival.  The  latter 
enters  with  the  secretary,  the  envoy  is  introduced  and 
at  once  proceeds  to  read  his  address,  which  is  replied 
to  by  the  President,  the  letter  of  credence  is  received  by 
the  President  and  handed  to  the  secretary  of  state,  and 
after  a  brief  informal  conversation  the  reception  ends. 
Since  the  establishment  of  embassies  the  above  practice 
has  been  modified  by  the  sending  of  a  member  of  the 
President's  military  staff  in  one  of  his  carriages,  with  a 
cavalry  escort,  to  bring  the  ambassador  to  the  White 
House.  It  seems  that  a  further  innovation  has  been 
made,  as  the  secretaries  of  war  and  the  navy,  when 
they  make  their  calls  upon  the  foreign  ambassadors,  are 
accompanied  by  their  military  aides  in  uniform. 

The  ceremony  already  described  of  the  Spanish  court 
is  that  most  nearly  observed  at  foreign  capitals,  and  is 


64  THE  PRACTICE  OF  DIPLOMACY 

usually  highly  appreciated  by  diplomats.  The  comment 
of  John  Quincy  Adams,  after  passing  one  of  these  cere- 
monies, is  as  follows :  "  The  formalities  of  these  court 
presentations  are  so  trifling  and  insignificant  in  them- 
selves, and  so  important  in  the  eyes  of  princes  and 
courtiers,  that  they  are  much  more  embarrassing  to  an 
American  than  business  of  real  importance.  It  is  not 
safe  or  j)rudent  to  despise  them,  nor  practicable  for  a 
person  of  rational  understanding  to  value  them." 

Mr.  Rush,  the  American  minister  at  London,  who 
had  been  attorney-general  and  acting  secretary  of  state 
at  Washington,  after  passing  his  presentation  audience 
of  the  Prince  Regent  in  1818,  which  he  evidently 
approached  with  misgivings,  thus  moralizes  upon  it  in 
his  Diary :  "  A  competent  knowledge  of  the  world  may 
guide  any  one  in  the  common  walks  of  life ;  more  espe- 
cially if  he  carry  with  him  the  cardinal  maxim  of  good- 
breeding  in  all  countries  —  a  wish  to  please  and  an 
unwillingness  to  offend.  But  even  in  private  society, 
there  are  rules  not  to  be  known  but  by  experience ; 
and  if  those  differ  in  different  places,  I  could  not  feel 
insensible  to  the  approach  of  an  occasion  so  new.  My 
first  desire  was,  not  to  fail  in  the  public  duties  of  my 
mission.  The  next,  to  pass  properly  through  the  scenes 
of  official  and  personal  ceremony  to  which  it  exposed 
me.  At  the  head  of  them  was  my  introduction  to 
the  sovereign.  .  .  .  The  external  observances  —  what 
were  they  ?  They  defy  exact  definition  beforehand,  and 
I  had  never  seen  them." 

After  describing  the  ceremonies  through  which  he 
had  just  passed,  he  writes :  "  I  may  have  dwelled  on 


THE  RECEPTION  OF  ENVOYS  65 

them  the  longer  because  they  were  new  to  me.  I  do 
not  discuss  their  importance.  I  give  them  as  facts.  The 
philosopher  may  rail  at  them ;  but,  in  his  philosophy, 
he  may  discover,  if  candid,  matters  for  railing  too.  In 
the  machinery  of  political  or  social  life,  the  smallest 
parts  are  often  those  that  give  impulse  to  the  greatest 
movements.  ...  It  may  be  thought  that  the  forms  I 
detail  are  the  growth  only  of  monarchical  soils.  Their 
roots  lie  deeper.  If  none  but  republics  existed,  other 
forms  would  arise,  differing  in  circumstance,  but  not 
in  essence."  ^ 

It  will  be  of  interest  to  read  the  account  which  our 
first  minister  to  Great  Britain,  John  Adams,  gave  in  his 
report  to  Mr.  Jay,  Secretary  of  Foreign  Affairs,  of  his 
presentation  and  delivery  of  credentials  to  King  George 
III  in  1785 :  "  The  master  of  ceremonies  attended  me 
in  the  ante-chamber  while  the  secretary  of  state  went 
to  take  the  commands  of  his  Majesty.  While  I  stood 
in  this  place,  where,  it  seems,  all  ministers  stand  upon 
such  occasions,  always  attended  by  the  master  of  cere- 
monies, the  room  very  full  of  ministers  of  state,  bishops, 
and  all  other  sorts  of  courtiers,  as  well  as  the  next  room, 
which  is  the  King's  bed  chamber,  you  may  well  suppose 
I  was  the  focus  of  all  eyes.  I  was  relieved  from  the 
embarrassment  of  it  by  the  Swedish  and  Dutch  minis- 
ters, who  came  to  me  and  entertained  me  with  a  very 
agreeable  conversation  the  whole  time.  Some  other 
gentlemen,  whom  I  had  seen  before,  also  came  to  make 
their  compliments  to  me,  till  the  Marquis  of  Caermarthen 

*  Residence  at  the  Court  of  London,  by  Richard  Rush,  edition  1872, 
81,  93. 


66  THE  PRACTICE   OF  DIPLOMACY 

returned  to  me  and  desired  me  to  go  with  him  to  his 
Majesty.  I  went  with  his  lordship  through  the  levee 
room  into  the  King's  closet.  The  door  was  shut,  and 
I  was  left  with  his  Majesty  and  the  secretary  alone.  I 
made  the  three  reverences,  one  at  the  door,  another 
about  half-way,  and  the  third  before  the  presence, 
according  to  the  usage  established  at  this  and  all  the 
northern  courts  of  Europe,  and  then  addressed  myself 
to  his  Majesty  in  the  following  words :  — 

"  ^  Sire,  —  The  United  States  of  America  have 
appointed  me  their  minister  plenipotentiary  to  your 
Majesty,  and  have  directed  me  to  deliver  to  your  Ma- 
jesty this  letter  which  contains  the  evidence  of  it.  It 
is  in  obedience  to  their  express  commands,  that  I  have 
the  honor  to  assure  your  Majesty  of  their  unanimous 
disposition  and  desire  to  cultivate  the  most  friendly  and 
liberal  intercourse  between  your  Majesty's  subjects  and 
their  citizens,  and  of  their  best  wishes  for  your  Majesty's 
health  and  happiness,  and  for  that  of  your  royal  family. 
The  appointment  of  a  minister  from  the  United  States 
to  your  Majesty's  Court  will  form  an  epoch  in  the  his- 
tory of  England  and  of  America.  I  think  myself  more 
fortunate  than  all  my  fellow-citizens,  in  having  the 
distinguished  honor  to  be  the  first  to  stand  in  your 
Majesty's  royal  presence  in  a  diplomatic  character; 
and  I  shall  esteem  myself  the  happiest  of  men,  if  I 
can  be  instrumental  in  recommending  my  country  more 
and  more  to  your  Majesty's  royal  benevolence,  and  of 
restoring  an  entire  esteem,  confidence,  and  affection, 
or,  in  better  words,  the  good  old  nature  and  the  good  old 
humor  between  people,  who,  though  separated  by  an 


THE  RECEPTION  OF  ENVOYS  67 

ocean,  and  under  difPerent  governments,  have  the  same 
language,  a  similar  religion,  and  kindred  blood. 

" '  I  beg  your  Majesty's  permission  to  add,  that,  al- 
though I  have  some  time  before  been  intrusted  by  my 
country,  it  was  never  in  my  whole  life  in  a  manner  so 
agreeable  to  myself.' 

"  The  King  listened  to  every  word  I  said,  with  dig- 
nity, but  an  apparent  emotion.  Whether  it  was  the 
nature  of  the  interview,  or  whether  it  was  my  visible 
agitation,  for  I  felt  more  than  I  did  or  could  express, 
that  touched  him,  I  cannot  say.  But  he  was  much 
affected,  and  answered  me  with  more  tremor  than  I 
had  spoken  with,  and  said  :  — 

"  ^  Sir, —  The  circumstances  of  this  audience  are  so 
extraordinary,  the  language  you  have  now  held  is  so 
extremely  proper,  and  the  feelings  you  have  discovered 
so  justly  adapted  to  the  occasion,  that  I  must  say  that  I 
do  not  only  receive  with  pleasure  the  assurance  of  the 
friendly  dispositions  of  the  United  States,  but  that  I  am 
very  glad  the  choice  has  fallen  upon  you  to  be  their 
minister.  I  wish  you,  sir,  to  believe,  and  that  it  may 
be  understood  in  America,  that  I  have  done  nothing 
in  the  late  contest  but  what  I  thought  myself  bound 
to  do,  by  the  duty  which  I  owed  to  my  people.  I  will 
be  very  frank  with  you.  I  was  the  last  to  consent  to  the 
separation ;  but  the  separation  having  been  made,  and 
having  become  inevitable,  I  have  always  said,  as  I  say 
now,  that  I  would  be  the  first  to  meet  the  friendship 
of  the  United  States  as  an  independent  power.  The 
moment  I  see  such  sentiments  and  language  as  yours 
prevail,  and  a  disposition  to  give  to  this  country  the 


68  THE  PRACTICE  OF  DIPLOMACY 

preference,  that  moment  I  shall  say,  let  the  circumstances 
of  language,  religion,  and  blood  have  their  natural 
and  full  effect;  " 

After  reporting  some  informal  conversation,  Mr. 
Adams  wrote :  "  The  King  then  turned  round  and  bowed 
to  me,  as  is  customary  with  all  kings  and  princes  when 
they  give  the  signal  to  retire.  I  retreated,  stepping 
backward,  as  is  the  etiquette,  and,  making  my  last  rev- 
erence at  the  door  of  the  chamber,  I  went  my  way. 
The  master  of  ceremonies  joined  me  the  moment  of  my 
coming  out  of  the  King's  closet,  and  accompanied  me 
through  the  apartments  down  to  my  carriage,  several 
stages  of  servants,  gentlemen-porters,  and  under-porters, 
roaring  out  like  thunder,  as  I  went  along,  ^  Mr.  Adams's 
servants,  Mr.  Adams's  carriage,  &c.'  I  have  been  thus 
minute,  as  it  may  be  useful  to  others  hereafter  to 
know." ' 

The  presentation  a  few  years  later  of  his  credentials 
by  James  Monroe  as  minister  to  France  was  quite  in 
contrast  to  that  of  Mr.  Adams.  He  was  received  by  the 
National  Convention  in  open  session,  the  president  of 
that  body  welcoming  him  upon  the  platform  with  an 
embrace,  and  addresses  were  exchanged  amid  great 
applause.'^ 

Much  trouble  has  been  occasioned  to  foreign  gov- 
ernments in  their  diplomatic  intercourse  with  China 
because  of  the  oriental  customs  adhered  to  by  the  coiu't 
of  that  country.  Early  in  the  nineteenth  century  Lord 
Amherst,  a   British   ambassador,  reached  Peking  with 

'  8  Works  of  John  Adams  (1853),  256. 

2  For  detailed  account,  Foster's  American  Diplomacy,  172. 


THE  RECEPTION  OF  ENVOYS  69 

an  imposing  suite,  but  because  of  his  refusal  to  per- 
form the  Tcotou  or  kow-tow,  by  personal  prostration  at 
the  feet  of  the  emperor,  his  mission  completely  failed. 
Napoleon  severely  criticised  the  conduct  of  Lord  Am- 
herst, stating  that  envoys  ought  to  accept  the  etiquette 
of  the  court  to  which  they  are  accredited.  The  j&rst 
American  minister  to  reach  Peking,  Mr.  Ward,  in 
1859,  failed  in  his  mission  for  similar  reasons.  Not 
until  after  the  Boxer  uprising  and  the  siege  of  the 
legations  in  1900  was  the  last  vestige  of  oriental 
diplomatic  intercourse  swept  away. 

One  of  the  provisions  of  the  protocol  entered  into 
with  the  Chinese  government  by  the  American  and  other 
ministers  in  1901  was  that  a  member  of  the  imperial 
family  should  make  an  expiatory  journey  as  an  ambas- 
sador to  Berlin,  and  express  to  the  emperor  of  Germany 
the  regrets  of  the  emperor  of  China  for  the  assassination 
of  the  German  minister  during  the  Boxer  outbreak. 
When  the  ambassador  reached  the  German  frontier,  he 
was  notified  that  he  would  be  expected,  on  appearing  in 
the  presence  of  the  emperor  of  Germany,  to  make  the 
same  Tcotou  or  prostration  as  would  be  performed  by 
him  in  the  presence  of  his  own  emperor.  This  he  de- 
clined to  do,  and,  after  some  parleying,  he  was  received 
at  Berlin  with  the  same  ceremonies  —  the  three  bows 
—  as  at  the  presentation  of  a  German  plenipotentiary 
at  Peking. 

Our  minister  at  London  narrates  the  visit  in  1857  of 
Siamese  commissioners  to  Queen  Victoria,  bearing  pre- 
sents from  the  king  of  Siam.    On  being  introduced  to 

*  American  Diplomacy  in  the  Orient,  John  W.  Foster,  24,  249,  269. 


70  THE  PRACTICE  OF  DIPLOMACY 

her  presence,  seated  on  her  throne,  to  the  surprise  of  the 
attendant  courtiers,  the  commissioners  fell  in  a  group 
upon  their  faces,  crawled  on  all  fours  to  the  foot  of 
the  throne,  and  there  delivered  the  presents.^ 

The  date  of  reception  of  credentials  regulates  the 
order  of  standing  or  precedence  of  envoys  of  the  same 
rank  at  the  capital  where  they  are  stationed,  the  one 
newly  received  going  to  the  foot  of  the  Hst.  After  the 
passage  of  the  statute  of  1893,  authorizing  ambassadors 
in  the  United  States  diplomatic  service,  it  was  deter- 
mined by  the  leading  powers  of  Europe  to  raise  their 
ministers  in  Washington  to  the  rank  of  ambassadors, 
and  there  occurred  a  quiet  struggle  for  the  first  presen- 
tation of  such  credentials,  as  that  act  would  make  the 
deliverer  of  them  the  head  or  dean  of  the  local  diplo- 
matic corps.  The  French  government  first  nominated 
its  minister  an  ambassador,  and  was  soon  followed  by 
the  British  government.  The  London  foreign  office 
was,  however,  more  prompt  in  forwarding  the  queen's 
letter  of  credence,  and  her  majesty's  minister  was 
enabled  to  deliver  it  into  the  hands  of  the  President 
before  his  French  colleague  was  received,  and  therefore 
the  British  ambassador  became  the  dean  of  the  diplo- 
matic corps  and  took  rank  next  after  the  President  and 
Vice-President. 

The  practice  in  monarchical  governments  of  accredit- 
ing anew  their  diplomatic  representatives  on  the  ac- 
cession of  every  new  ruler  has  occasioned  some  question 
as  to  the  relative  precedence  of  envoys.  Between  1870 
and  1874  various  changes  of  rulers  occurred  in  Spain, 

1  Letters  from  London  by  George  M.  Dallas,  356. 


THE  RECEPTION  OF  ENVOYS  71 

On  the  accession  of  King  Alphonso  the  British  minister 
was  and  for  some  time  had  been  the  oldest  resident 
minister,  but,  the  ministers  of  Portugal  and  Russia 
having  presented  their  new  credentials  to  the  king 
before  their  British  colleague,  they  claimed  precedence 
over  him.  After  much  discussion,  it  was  decided  that 
foreign  ministers  preserve  their  relative  precedence  ac- 
cording to  the  date  of  their  official  notification  of  their 
first  arrival,  without  regard  to  the  order  in  which  they 
may  afterwards  deliver  fresh  credentials  on  the  occasion 
of  a  new  sovereign.  Such  was  the  view  taken  by  the 
American  minister,  Mr.  Gushing,  and  it  was  approved 
by  his  government.^ 

Following  his  reception,  the  American  envoy  has  a 
round  of  official  visits  to  make.  If  accredited  to  a  royal 
court,  there  are  usually  certain  presentations  to  be  made 
to  the  heir  apparent  and  other  members  of  the  royal 
family,  and  these  are  arranged  through  the  master 
of  ceremonies.  This  official  also  furnishes  him  a  list  of 
the  higher  members  of  the  government  upon  whom  the 
envoy  is  expected  to  make  the  first  call.  He  likewise 
makes  the  first  call  upon  his  colleagues  of  the  diplo- 
matic corps.  If  of  the  grade  of  minister,  he  cannot  call 
upon  the  ambassadors  except  by  appointment,  which  is 
usually  made  upon  written  application.  Even  a  new 
ambassador  has  a  certain  formality  to  observe,  which  is 
not  very  clearly  defined,  as  was  shown  in  the  case  of  the 
newly  created  ambassador  of  Mexico,  whose  ambassado- 
rial colleagues  declined  to  accept  an  invitation  to  his 
embassy  because  of  the  omission  of  some  not  very  well 

1  U.  S.  For.  Rel.  1875,  1105, 1108. 


72  THE   PRACTICE   OF   DIPLOMACY 

understood  formality ;  although  it  is  possible  they  took 
that  method  of  exhibiting  their  displeasure  at  the  crea- 
tion of  an  embassy  by  Mexico,  it  being  felt  by  them  that 
ambassadorial  distinction  should  be  reserved  for  the 
Great  Powers  of  Europe. 

An  early  duty  of  an  American  envoy  after  his  arrival 
is  to  find  a  location  for  his  of&ce  and  residence.  These 
are  usually  combined  in  the  same  building,  although  in 
a  few  capitals,  as  London,  Paris,  and  Berlin,  ofiices  are 
provided  separate  from  the  residence.  Our  government 
makes  no  provision  for  residences  for  its  diplomatic 
representatives,  and  this  omission  is  a  source  of  great 
embarrassment  to  the  newly  arrived  envoy,  and  in  a 
lesser  degree  to  those  who  have  relations  with  him,  as  a 
change  in  the  location  of  the  legation  usually  occurs 
with  the  arrival  of  every  new  minister.  The  desirability 
of  having  the  legation  residences  owned  by  the  govern- 
ment has  often  been  urged  upon  Congress,  and  the 
secretaries  of  state  have  collected  information  as  to  their 
cost  and  importance,  but  thus  far  Congress  has  not 
thought  proper  to  authorize  the  appropriation  necessary 
to  this  new  dignity  and  usefulness  of  its  foreign  repre- 
sentation. It  has,  however,  been  found  necessary  for 
the  government  to  erect  and  own  legation  houses  in 
China,  Japan,  Korea,  and  Siam,  owing  to  the  fact  that 
it  was  not  possible  to  rent  suitable  legation  residences 
in  those  countries. 

The  practice  of  owning  their  own  legations  is  ob- 
served by  a  number  of  the  nations  of  the  world.  Lega- 
tion houses  are  now  owned  in  Washington  by  the  fol- 
lowing governments:  Great  Britain,  Germany^  Mexico, 


THE  RECEPTION  OF  ENVOYS  73 

Austria,  Italy,  Japan,  China,  and  Korea,  and  the  number 
is  likely  to  be  increased. 

A  curious  incident  of  congressional  legislation  is  con- 
nected with  this  subject.  Yielding  to  the  demand  for 
some  restraint  upon  the  extensive  ownership  of  lands  in 
the  West  by  foreign  syndicates  and  corporations,  an 
act  was  passed  in  1887  restricting  the  ownership  of  real 
estate  in  the  Territories  to  American  citizens.  It  was 
not  intended  to  have  it  apply  to  legation  property  in 
Washington,  but  its  language  operated  to  that  end,  and 
it  became  necessary  to  pass  an  act  the  following  year  so 
amending  the  law  as  not  to  apply  to  the  ownership  of 
legations  in  the  District  of  Columbia. 


CHAPTER  V 

DUTIES  OF  A  DIPLOMAT TO  HIS  OWN  GOVERNMENT 

The  duties  of  a  diplomatic  representative  may  be  divided 
into  two  general  classifications :  first,  to  his  own  gov- 
ernment and  its  citizens ;  second,  to  the  government  of 
his  residence  and  its  people. 

It  is,  as  a  matter  of  course,  the  duty  of  the  envoy 
to  keep  his  own  government  informed  of  the  state 
and  progress  of  all  business  intrusted  to  him  by  it,  or 
which  may  arise  in  the  regular  course  of  affairs ;  but 
in  addition  to  this,  he  is  to  keep  it  informed  of  all  that 
occurs  in  the  country  of  his  residence  affecting  the 
government  of  the  latter,  its  policy  and  spirit,  whether 
it  has  relation  to  his  own  or  other  countries ;  and  the 
general  sentiment  of  the  country,  its  commercial,  indus- 
trial, and  scientific  development. 

An  envoy  can  hardly  be  too  diligent  in  attention  to 
these  duties,  but  one  occasionally  oversteps  the  proper 
limits  of  desired  information.  A  minister  going  to  his 
post  in  South  America,  having  never  before  been  out 
of  his  own  country,  sent  back  to  the  Department  of 
State  a  detailed  account  of  his  journey,  in  which  he 
described  in  such  florid  language  the  beauties  of  the 
scenery  and  the  experiences  of  foreign  travel  to  him  so 
novel,  that  when  the  dispatch  appeared  in  the  annual 
publication  of  the  department  it  exposed  him  to  the 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT       75 

ridicule  and  criticism  of  the  press.  One  of  the  ministers 
to  a  European  court  was  so  fascinated  by  the  attentions 
of  royalty  that  he  furnished  the  secretary  of  state  with 
a  description  of  a  state  ball,  of  which  the  most  con- 
spicuous and  important  event  was  the  honor  conferred 
upon  him  and  his  country  by  his  dancing  with  her 
majesty  the  queen.  Its  publication  furnished  the  tojDic 
of  a  spirited  discussion  in  the  lower  house  of  Congress, 
in  which  the  usefulness  of  the  diplomatic  service  was 
treated  with  irony  and  contempt. 

The  envoy,  in  assuming  the  duties  of  his  office,  receives 
from  his  predecessor  the  archives  and  property  of  the 
embassy  or  legation,  of  which  a  schedule  is  furnished 
him  and  for  which  he  gives  a  receipt  These  comprise 
the  record  books  and  correspondence  of  his  office,  the 
cipher  of  the  department,  the  legation  seal,  the  gov- 
ernment stationery  and  blanks,  the  library  (consisting 
of  the  laws  of  the  United  States,  diplomatic  correspond- 
ence, text-books  on  international  law,  supreme  court 
reports,  and  official  and  miscellaneous  publications),  and 
other  property,  such  as  office  furniture,  flags,  shield,  etc. 

Explicit  directions  are  given  in  the  Printed  Instructions 
of  the  Department  of  State  respecting  the  record  books 
and  official  correspondence,  and  the  duties  of  the  envoy 
concerning  them,  and  it  suffices  to  refer  to  that  publica- 
tion for  details.  A  few  technical  terms  may  be  men- 
tioned. The  official  communications  of  the  department 
to  the  envoy  are  styled  "  Instructions,"  and  his  com- 
munications to  the  department  are  termed  '^  Dispatches." 
The  communications  sent  by  the  envoy  to  the  foreign 
office  of  the  country  to  which  he  is  accredited  and  its 


76  THE  PRACTICE  OF  DIPLOMACY 

communications  to  him  are  called  "  Notes."  In  the  past 
these  have  been  accustomed  to  be  written  in  a  some- 
what stilted  style  with  the  use  of  the  third  person,  but 
the  practice  of  the  secretaries  of  state  in  the  use  of  the 
first  person  is  less  formal,  and  has  modified  to  some  ex- 
tent the  ancient  usage.  'Of  this  method  John  Quincy 
Adams,  when  secretary  of  state,  made  the  following 
comment  in  his  diary :  "  There  is  one  difference  in 
the  correspondence  of  all  the  foreign  ministers  here 
from  that  which  is  usual  in  Europe  —  they  write  letters 
instead  of  notes,  in  the  first  person  instead  of  the  third. 
The  effect  of  this  difference  upon  style  is  greater  than 
any  one  not  habituated  to  both  modes  would  imagine. 
The  third  person,-t'  The  undersigned,'j- is  stiff,  cold, 
formal,  and  dignified  ;  it  is  negotiation  in  Court  dress, 
bag  wig,  sword  by  side,  chapeau  de  bras,  white  silk 
stockings,  and  patent  shoe-buckles.  Letters  in  the  first 
person  are  negotiations  in  frock  coat,  pantaloons,  half- 
boots,  and  a  round  hat." 

Among  the  duties  of  an  American  envoy  is  that  of 
issuing  passports  to  his  countrymen.  An  American  pass- 
port expires  by  limitation  two  years  from  its  date  of 
issue,  and  citizens  travehng  or  residing  abroad  often 
require  to  have  their  passports  renewed.  The  only 
officials  in  foreign  lands  authorized  to  do  this  are  the 
heads  of  missions.  The  duty  often  presents  perplexing 
questions  as  to  citizenship.  Americans  residing  abroad 
are  required,  in  order  to  secure  a  passport,  to  make 
oath  that  they  intend  to  return  to  the  United  States 
within  a  specified  date,  with  the  purpose  of  residing  and 

»  4  J.  Q.  Adams's  Memoirs,  327. 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT      77 

performing  the  duties  of  citizenship  there.  For  many 
such  Americans  the  oath  is  quite  embarrassing.  It  also 
presents  to  the  ambassador  or  minister  a  di£B.cult  ques- 
tion for  solution.  Many  Americans  reside  abroad  as 
the  agents  or  representatives  of  American  commerce 
or  industries,  and  others  for  health,  study,  or  pleasure. 
Where  such  persons  are  native  born  citizens,  it  is  usually 
easy  to  determine  whether  they  still  remain  bona  fide 
Americans. 

In  the  issuance  of  passports,  the  chief  trouble  arises 
in  the  application  of  naturalized  citizens,  who,  after 
having  secured  citizenship,  in  many  cases  return  to  the 
country  of  their  nativity  with  the  apparent  intention  of 
permanent  residence.  The  records  of  the  Department 
of  State  show  that  a  large  percentage  of  naturalized 
citizens  who  apply  for  passports  to  go  abroad  are  natu- 
ralized within  six  months  of  the  date  of  their  applica- 
tion. The  instructions  of  the  secretary  of  state  leave  to 
the  heads  of  missions  a  large  discretion  as  to  the  rejec- 
tion of  applications.^ 

The  imperfections  which  exist  in  the  naturalization 
laws  are  in  large  measure  responsible  for  the  abuse  of 
citizenship  so  frequently  seen  in  Europe.  The  necessity 
of  a  reform  in  the  existing  laws  has  been  repeatedly 
brought  to  the  attention  of  Congress.  President  Grant, 
in  a  message  calling  attention  to  the  impositions  prac- 
ticed on  our  citizenship  by  those  of  alien  bii'th,  said : 
"  They  reside  permanently  away  from  the  United  States  ; 
they  contribute  nothing  to  its  revenues;  they  avoid  their 
duties  of  citizenship) ;  and  they  only  make  themselves 

'  Circular  as  to  Passports,  March  27,  1899,  U.  S.  For.  Rel.  1902,  1. 


78  THE  PRACTICE   OF  DIPLOMACY 

known  by  a  claim  for  protection."^  The  revision  of  the 
naturalization  laws  has  recently  been  made  the  subject 
of  careful  study  by  an  official  committee  of  experts, 
and  their  report  resulted  in  the  passage  by  the  Fifty- 
ninth  Congress  of  a  law  which  is  designed  to  effect 
radical  reform  in  the  naturalization  of  aHens.  Provi- 
sion is  made  for  a  record  to  be  kept  in  the  Department 
of  Commerce  and  Labor  at  Washington  of  the  issuance 
of  all  certificates  of  naturalization,  and  stricter  rules  as 
to  naturalization  are  enacted,  among  which  is  the  re- 
quirement of  being  able  to  speak  the  English  language. 
It  is  provided  that  if  naturalized  persons  take  perma- 
nent residence  abroad,  it  shall  be  considered  prima  facie 
evidence  of  a  lack  of  intention  to  become  a  permanent 
citizen,  and,  in  the  absence  of  countervailing  evidence, 
authorizes  the  courts  to  cancel  the  certificate  of  citizen- 
ship. It  is  also  made  the  duty  of  diplomatic  and  consu- 
lar officers  to  report  from  time  to  time  to  the  Department 
of  Justice  the  names  of  such  persons  residing  in  their 
districts,  with  a  view  to  the  cancellation  of  their  citizen- 
ship.^ 

The  matter  of  the  extradition  of  criminals  or  fusri- 
tives  from  justice  often  demands  the  attention  of  am- 
bassadors and  ministers.  It  is  througfh  them  that  the 
demand  for  extradition  is  made  upon  the  country  of 
refuge.  They  likewise  have  certain  duties  to  discharge 
in  connection  with  the  demand  of  foreign  governments 
for  extradition  from  the  United  States.    These  duties 

>  7  Messages  and  Papers  of  the  Presidents  (1896),  36. 
'  Law  of  Congress,  approved   June  29,  1906.   See  Citizenship  in  the 
United  States,  Frederick  Van  Dyne. 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT    79 

are  sometimes  of  a  delicate  character  and  require  legal 
knowledge  or  counsel.^ 

In  no  branch  of  international  intercourse  has  the 
growth  of  comity  and  friendly  reciprocity  been  more 
conspicuous  than  in  this  matter  of  the  mutual  extradi- 
tion of  criminals.  With  Great  Britain  our  intercourse 
is  more  intimate  than  that  with  any  other  nation,  but 
not  until  nine  years  after  our  independence  was  recog- 
nized, was  a  treaty  stipulation  as  to  extradition  agreed 
upon,  and  it  embraced  only  two  crimes.  The  second 
treaty  was  negotiated  by  Secretary  Webster  in  1842, 
and  it  provided  for  extradition  for  seven  offenses.  The 
number  of  offenses  for  which  extradition  is  now  en- 
forced numbers  twenty-five,  and  includes  practically  the 
entire  list  of  acts  generally  recognized  as  crimes. 

Complaints  of  a  varied  character  against  the  treat- 
ment of  local  officials  are  made  by  Americans.  These 
usually  fall  within  the  province  of  the  consul,  at  least 
in  the  first  instance ;  but  they  often  call  for  the  inter- 
position of  the  diplomatic  representative.  The  cases 
which  most  frequently  require  the  attention  of  the  latter 
are  those  of  naturalized  Americans  who  return  to  the 
country  of  their  birth  and  are  subjected  to  various 
exactions  from  the  authorities,  such  as  a  demand  for 
mihtary  service,  or  other  undischarged  obligations  inci- 
dent to  nativity. 

The  protection  of  American  citizens  abroad  has  well 
been  stated  by  Secretary  Hay,  in  a  communication  to 
Congress,  to  be  one  of  the  most  important  of  the  duties 

1  For  extradition  questions,  A  Treatise  on  Extradition  and  Interstate 
Rendition,  by  John  Bassett  Moore. 


80  THE  PRACTICE  OF  DIPLOMACY 

of  our  diplomats.  As  has  been  seen,  in  cases  where  citi- 
zenship has  been  abused,  it  becomes  their  duty  to  re- 
fuse the  protection  demanded,  and  this  has  in  some 
cases  occasioned  the  criticism  not  infrequently  heard 
that  the  American  government  and  its  representatives 
do  not  aiford  such  adequate  guardianship  of  its  citizens 
abroad  as  is  given,  for  instance,  by  the  British  gov- 
ernment. I  regard  such  criticisms  as  without  founda- 
tion. The  tendency  of  our  representatives  is  to  be  too 
zealous  rather  than  too  indifferent,  and  no  nation  has 
been  more  prompt  to  respond  to  the  just  appeals  of  its 
citizens  abroad  than  the  United  States.  The  noted  cases 
of  Martin  Koszta  in  1853,  and  of  Ion  Perdicaris  in 
1904,  illustrate  the  extreme  measures  which  will  be 
adopted  by  the  government  for  their  protection. 

In  countries  with  which  the  United  States  has  impor- 
tant trade  relations,  commercial  questions  are  apt  to 
occupy  much  of  the  time  and  study  of  the  heads  of 
missions.  Import  regulations,  tariff  discrimination,  and 
the  general  commercial  policy  of  the  country  are  mat- 
ters about  which  the  diplomatic  representative  must 
keep  his  own  government  well  informed,  and  respect- 
ing which  he  may  have  to  make  representations  to  the 
government  to  which  he  is  accredited. 

The  use  of  the  embassy  or  legation  is  sometimes  asked 
to  celebrate  a  marriage.  The  Printed  Instructions  of  the 
department  allow  the  ceremony  to  be  performed,  but  it 
is  made  the  duty  of  the  diplomatic  representative  to 
ascertain  whether  the  parties  may  lawfully  marry  accord- 
ing to  the  laws  of  the  country ;  and  whether  the  proper 
steps  have  been  taken  —  facts  which  it  is  not  always 


DUTIES  OF  A  DIPLOMAT  TO   HIS  GOVERNMENT    81 

easy  to  obtain  with  accuracy.  The  use  of  the  legation 
does  not  add  anything  to  the  validity  of  the  act. 

Many  Americans  would  make  the  embassies  and 
legations  "  information  bureaus "  to  meet  their  wants 
as  sight-seers.  Other  visiting  countrymen  have  large 
expectations  as  to  the  social  attentions  they  will  re- 
ceive. Lord  Palmerston,  on  being  questioned  by  a  Par- 
liamentary committee  as  to  the  propriety  of  reducing 
the  salaries  of  ambassadors,  and  whether  that  would  not 
relieve  them  from  extending  such  costly  hospitalities  to 
English  visitors,  replied  that  it  would  not,  and  that  if 
they  attempted  it  the  English  visitors  "  would  reckon 
our  ambassador  a  very  stingy  fellow,  and  would  abuse 
him  all  over  Europe."  American  diplomatists  who  have 
attempted  to  live  on  their  meagre  salaries  have  real- 
ized Lord  Palmerston's  prediction. 

Presentations  at  court  are  the  demands  most  difficult 
of  compliance  amongst  the  social  duties  of  the  Ameri- 
can envoy.  The  plethora  of  applicants  is  greatest  at  the 
embassy  in  London,^  but  in  other  monarchical  courts 
it  is  more  or  less  embarrassing,  as  the  invitations  are 
very  limited,  and  many  American  democrats  must  ne- 
cessarily be  disappointed  in  their  royal  aspirations.  The 
limitation  is  especially  depressing  to  American  women 
who  wish  to  have  at  least  a  glimpse  of  court  life. 

Charles  Francis  Adams,  minister  in  London,  wrote 
Secretary  Seward,  1867  :  "  Court  attendance,  with  the 
annoyances  resulting  from  numerous  applicants  for  pre- 
sentation, have  always  proved  here  the  most  annoying 
and  irksome  of  my  public  duties."  ^   Mr.  Lowell,  writing 

1  S.  Ex.  Doc.  68, 40th  Cong.,  1st  Sess.        »  U.  S.  For.  Rel.  1867, 117. 


82  THE  PRACTICE   OF  DIPLOMACY 

to  his  friend  Thomas  Bailey  Aldrich,  1882,  in  a  seem- 
ing fit  of  depression  over  his  duties,  says :  "  I  am  now 
in  the  midst  of  the  highly  important  and  engrossing 
business  of  arranging  for  the  presentation  at  Court  of 
some  of  our  fair  citoyennes.  Whatever  else  you  are, 
never  be  a  Minister."  * 

From  the  foregoing  hasty  sketch  of  the  duties  of  the 
diplomat  in  the  details  of  his  of&ce  work,  in  the  demands 
of  his  government,  and  the  calls  made  upon  him  by  his 
countrymen,  it  is  seen  that  no  American  minister  need 
find  his  post  an  idle  one.  Said  Mr.  Wheaton  :  "  Nothing 
vexes  me  more  than  to  hear  an  American  minister  say, 
whatever  the  court  may  be  to  which  he  is  accredited, 
<  There  is  nothing  to  do  here,'  or  *  Nothing  can  be  done.' 
I  do  not  know  a  post,  whether  important  or  not,  which 
could  not  afford  a  zealous,  active,  and  skillful  agent  the 
opportunity  of  doing  something  for  the  interests  of  his 
country."^' 

The  statutes  do  not  permit  a  minister  to  be  absent 
under  pay  from  his  post  for  more  than  ten  days  without 
permission  of  the  department,  but  it  is  lawful  for  the 
department  to  allow  him  annually  a  leave  of  absence 
under  pay  for  not  exceeding  sixty  days.  If  the  leave 
includes  permission  to  visit  the  United  States,  the  usual 
traveling  time  going  and  coming  is  added  to  the  sixty 
days. 

The  American  minister  in  foreign  countries  is  some- 
times called  upon  to  act  in  concert  with  a  commander 
of  our  naval  forces.    While  in  cases  of  emergency  or 

1  2  Letters  of  James  Russell  Lowell  (1894),  268. 

2  Henry  Wheaton,  May  15,  1836,  in  Lawrence's  Commentaire,  83. 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNNENT    83 

threatened  danger  to  American  interests  the  naval  offi- 
cer is  instructed  to  put  himself  in  communication  -with 
the  diplomatic  representative  of  the  country,  he  does 
not  thereby  come  under  his  orders.  The  naval  officer 
receives  his  instructions  only  through  the  secretary  of 
the  navy.  While  there  should  exist  a  good  understand- 
ing and  harmony  of  action,  both  occupy  a  position  inde- 
pendent of  each  other.  ^ 

At  the  very  beginning  of  the  life  of  the  nation  it  was 
found  that  American  diplomats  could  not  always  live 
in  harmony  with  each  other.  The  relations  of  Messrs. 
Adams,  Lee,  and  Izard  with  Dr.  Franklin  at  Paris  have 
shown  that  petty  jealousies  and  interference  of  one  with 
the  duties  of  another  lead  to  recrimination  and  public 
scandal.  The  government  of  the  United  States  has  been 
as  fortunate  in  escaping  such  controversies  as  most 
nations,  but  they  have  been  sufficiently  frequent  to  call 
for  an  executive  order  from  the  President  requiring  that 
no  diplomatic  and  consular  officer  shall  attack  or  pub- 
licly criticise  any  other  officer  in  either  service,  but  that 
all  such  charges  shall  be  communicated  confidentially 
to  the  Department  of  State.^  A  recent  violation  of  this 
order  led  to  the  dismissal  from  the  service  of  one  min- 
ister accredited  to  Venezuela  and  the  censure  of  his  pre- 
decessor. 

The  proper  designation  of  the  embassies,  legations, 
and  consulates  of  the  United  States  of  America  has  been 
sought  to  be  fixed  by  a  circular  of  the  secretary  of  state, 

*  For  controversies  between  diplomatic  and  naval  officers,  see  Foster's 
American  Diplomaey  in  the  Orient,  206. 

'  Executive  Order,  April  25,  1902,  U.  S.  For.  Rel.  1902,  5. 


84  THE  PRACTICE  OF  DIPLOMACY 

in  order  to  secure  uniformity  in  use.  It  is  directed  that 
in  correspondence  and  in  printing,  and  in  seals  for  the 
diplomatic  and  consular  service,  the  adjective  used  shall 
be  "American"  instead  of  "United  States."  As,  how- 
ever, the  designation  in  the  laws  of  the  United  States 
authorizing  notarial  service  is  "The  United  States  of 
America,"  that  term  will  be  used  as  heretofore  when 
offi-cers  act  in  that  capacity.^ 

In  this  connection  it  may  be  useful  to  examine  the 
mooted  question  of  the  number  of  the  verb  or  pronoun  to 
be  used  in  connection  with  the  phrase  "  United  States" 
when  referred  to  as  the  body  politic  or  the  Federal 
Union.  On  the  one  hand,  it  is  contended  that  when 
followed  by  a  verb  or  when  indicated  by  a  pronoun, 
it  should  always  be  in  the  plural  number.  On  the  con- 
trary, it  is  claimed  that,  as  the  phrase  is  descriptive  of 
a  political  entity  or  one  nation,  it  should  be  treated  as  a 
collective  noun  in  the  singular  number. 

The  strongest  reason  in  support  of  the  first  conten- 
tion is  that  our  organic  code,  the  Federal  Constitution, 
always  treats  the  United  States  in  the  plural  number. 
In  considering  the  phraseology  of  the  Constitution  of 
the  United  States,  we  are  to  bear  in  mind  the  time  and 
circumstances  under  which  that  instrument  was  written. 
The  delegates  to  the  convention  which  framed  the  first 
organic  code  of  this  nation  came  together  as  the  repre- 
sentatives of  thirteen  independent  States,  which  had 
formed  a  coalition  or  league  against  the  mother  coun- 
try, but  had  not  as  yet  permanently  parted  with  any 
portion  of  their  sovereignty,  and  still  possessed  and 

1  Circular  of  August  3,  1904,  U.  S.  For.  Rel.  1904,  7. 


DUTIES  OF  A  DIPLOMAT  TO   HIS  GOVERNMENT    85 

exercised  the  right  to  make  their  own  war  levies,  to 
impose  their  own  taxes  and  customs  duties,  and  to  regu- 
late foreign  commerce.  In  editing  the  Constitution 
which  was  to  control  the  new  government,  it  was  nat- 
ural that  they  should  use  the  form  of  words  to  which 
they  had  been  accustomed  in  the  public  documents  of 
the  Continental  Congress  and  the  States.  It  can  hardly 
have  been  their  intention  to  impose  upon  their  descend- 
ants and  successors  through  all  time  the  necessary  and 
invariable  use  of  the  same  forms  of  expression  as  were 
employed  by  them.  We  venerate  John  Wicklif,  but  we 
prefer  the  Bible  in  more  modern  English  than  is  found 
in  his  version.  We  honor  Chaucer  as  the  father  of 
English  literature,  but  our  poets  no  longer  use  the  form 
of  words  in  which  he  wrote. 

If  we  examine  the  language  of  the  Constitution,  it 
will  be  seen  that  in  other  respects  than  as  to  the  phrase 
"  United  States  "  we  have  departed  from  the  custom  of 
the  fathers  of  our  government.  In  Article  I,  Section  2, 
Clause  5,  we  read,  "  The  House  of  Representatives  shall 
chuse  their  Speaker,"  etc. ;  in  the  same  article,  Section  3, 
Clause  5,  "  The  Senate  shall  chuse  their  other  officers," 
etc. ;  in  Section  4,  Clause  2,  "  The  Congress  shall  as- 
semble .  .  .  unless  they  shall,"  etc.  We  no  longer 
write  "  chuse,"  and  we  seldom,  in  referring  to  the 
House  of  Representatives,  the  Senate,  or  Congress,  use 
the  words  "  they  "  or  "  their."  A  learned  lawyer  has 
publicly  cited  Article  III,  Section  2,  "  The  judicial 
power  shall  extend  ...  to  controversies  to  which  the 
United  States  shall  be  a  party,"  as  evidence  that  even 
the  authors  themselves  of  the  Constitution  were  not 


86  THE  PRACTICE  OF  DIPLOMACY 

uniform  in  the  use  of  the  plural  in  connection  with  the 
"  United  States."  An  examination  of  our  fundamental 
code  also  shows  that  in  the  original  and  official  copy  all 
the  nouns  are  capitahzed. 

It  thus  appears  that  in  neither  typography,  orthogra- 
phy, etymology,  nor  syntax  do  we  of  the  present  day 
uniformly  follow  the  original  text  of  the  Constitution. 
If  we  are  permitted  without  criticism  to  write  the  nouns 
of  that  instrument  without  capitals,  to  modify  the  spell- 
ing of  words,  and  to  change  the  number  of  collective 
nouns  other  than  "  United  States,"  we  should  likewise 
be  permitted  to  follow  the  modern  practice  as  to  the 
latter  phrase,  unless  a  matter  of  principle  compels  the 
contrary  use.  The  fact  that  the  plural  use  of  the  verb 
occurs  in  the  Constitution  in  connection  with  that  phrase 
is  not  of  itself  a  controlling  reason.  It  must  have  a 
deeper  cause.  Is  it  found  in  the  fact  that  this  nation 
is  made  up  of  a  collection  of  States,  and  that  they  can- 
not be  ignored  in  the  use  of  the  phrase  ?  It  is  naturally 
susfsrested  that  an  event  occurred  in  the  sixties  which 
relieved  our  language  from  that  servitude. 

I  do  not,  however,  think  that  that  event  was  the  only, 
or  the  controlling,  reason  why  the  use  of  the  singular 
verb  is  permissible,  and  even  more  proper.  The  oneness 
of  our  government  was  proclaimed  long  before  the  first 
shot  was  fired  at  the  flag  over  Sumter.  Probably  the 
one  member  of  the  convention  of  1787  who  best  com- 
prehended the  significance  of  the  work  of  that  body 
was  James  Wilson  of  Pennsylvania,  and  he  declared  in 
the  debates  that  "by  adopting  this  Constitution  we 
shall  become  a  Nation."    In  "  The  Federahst,"  although 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT    87 

"United  States"  several  times  appears  in  the  plural, 
the  most  common  expression  is  "the  Union,"  "the  Re- 
public," and  "  America."  And  an  examination  of  the 
writings  and  speeches  of  Hamilton,  Jefferson,  Clay, 
Webster,  and  of  other  statesmen  of  the  period  before 
our  Civil  War,  will  show  that  while  with  the  phrase 
"United  States"  they  usually  felt  bound  to  couple  a 
plural  verb  or  pronoun,  they  were  constantly  striving 
to  avoid  it,  as  if  conscious  of  the  incongruity,  by  the 
use  of  some  other  phrase,  as  "the  Union,"  "the  Repub- 
lic," "  the  Government  of  the  United  States,"  recogniz- 
ing that  we  had  ceased  to  be  a  league  of  States  and 
had  become  a  nation,  a  single  political  entity,  in  our 
relations  with  the  world. 

The  reason  which  has  largely  controlled  the  use 
of  the  plural  verb  with  "  United  States "  is  one  of 
euphony.  It  seems  more  natural  and  euphonic  to  couple 
with  this  phrase  "  have  "  or  "were,"  rather  than  "  has  " 
or  "  was."  In  public  documents,  such  as  the  Presidents' 
messages,  I  find  a  number  of  examples  where  both  the 
singular  and  plural  forms  are  used  in  the  same  paper, 
and  sometimes  in  the  same  sentence.  For  instance.  Sec- 
retary Bayard  :  "  The  United  States  have  no  reason  to 
believe  that  any  discrimination  against  its  citizens  is 
intended."  As  the  writer  gets  away  from  the  phrase  in 
the  plural  form  he  escapes  the  euphonic  influence,  and 
recurs  to  the  true  significance  of  the  words. 

I  think  an  additional  reason  may  be  found  for  the 
growing  use  of  the  singular  verb  and  pronoun.  It  has 
been  the  prevailing  practice  to  refer  to  Great  Britain, 
France,  Germany,  and  other  nations  as  in  the  feminine 


88  THE  PRACTICE  OF  DIPLOMACY 

gender,  growing  out  of  the  fact  of  their  feminine  form 
in  the  Latin  language,  —  Britannia,  Gallia,  Germania, 
etc.,  —  and  it  thus  became  common  to  treat  the  names 
of  all  nationalities  as  feminine.  Calhoun,  for  example, 
says,  "  Great  Britain  herself,"  "  Texas  herself."  But  to 
speak  of  the  United  States  as  "  she  "  does  more  violence 
to  our  sense  of  euphony  than  "  it ;  "  hence  of  late  years 
we  have  gradually  drifted  into  the  custom  of  adopting 
the  neuter  "  it,"  which  makes  necessary  the  use  of  the 
singular  verb. 

If  it  must  be  an  invariable  rule  to  use  the  plural  verb, 
we  encounter  frequent  incongruities.  We  should  be 
compelled  to  say  that  in  the  Franco-German  war  "  the 
United  States  were  a  neutral."  We  could  not  properly 
say,  "  the  United  States  were  neutrals,"  because  in  our 
relations  with  foreign  governments  we  appear  only  as  a 
single,  indivisible  power.  Even  all  the  writers  who  em- 
ploy the  plural  verb  use  "  United  States  "  and  "  nation  " 
interchangeably.  Of  the  war  with  Spain  we  should  have 
to  say,  "  the  United  States  were  a  belligerent,"  as  there 
were  only  two  belligerents  in  the  contest.  It  woiild  not 
much  improve  the  sentence  to  say,  '^  the  United  States 
were  one  of  the  two  belligerents." 

The  result  of  a  somewhat  cursory  examination  of  the 
treatment  of  "  United  States  "  by  our  pubhc  men  and 
official  bodies  may  be  found  curious,  if  not  decisive  of 
the  proper  or  permissive  use  of  the  verb  and  pronoun 
in  connection  with  that  phrase.  It  is  found  that  in  the 
earlier  days  of  the  republic  the  prevailing  practice  was 
the  use  of  the  plural,  but  even  then  many  public  men  at 
times  employed  the  singular.  Among  statesmen  who  have 


DUTIES  OF  A  DIPLOMAT  TO  HIS   GOVERNMENT    89 

used  the  singular  form  may  be  cited  Hamilton,  Webster, 
Silas  Wright,  Benton,  Schurz,  Edmunds,  Depew ;  of 
our  secretaries  of  state,  Jefferson,  Marcy,  Seward,  Fish, 
Evarts,  Blaine,  Frelinghuysen,  Bayard,  Gresham,  Olney, 
Hay,  and  Root ;  among  diplomats.  Motley,  C.  F.  Adams, 
E.  J.  Phelps,  Choate,  and  Reid ;  professors  of  interna- 
tional law  and  lawyers,  Woolsey  of  Yale,  Moore  of 
Columbia,  Huffcut  of  Cornell,  and  James  C.  Carter  of 
New  York.  In  the  earlier  messages  of  the  Presidents 
the  use  of  the  singular  verb  is  seldom  found,  Jackson's 
being  the  only  one  noted;  but  in  later  years  it  appears 
in  those  of  Lincoln,  Grant,  Cleveland,  Harrison,  Mc- 
Kinley,  and  Roosevelt.  Messages  of  the  last  four  are 
found  in  which  the  singular  verb  alone  is  used  through- 
out the  message  in  connection  with  "  United  States." 

The  decisions  of  the  Supreme  Court  in  the  earlier 
years  rarely  show  the  use  of  the  singular,  but  several 
cases  have  been  found,  and  in  later  years  its  use  has  been 
growing  much  more  frequent.  For  example,  in  a  recent 
decision  (La  Abra  Company  vs.  United  States,  175  U.  S. 
423),  "  United  States"  occurs  no  less  than  seven  times  in 
connection  with  a  singular  verb  or  pronoun,  and  no  use 
is  made  of  the  plural.  There  is,  however,  no  uniformity 
in  the  court,  each  member  of  it  following  his  individ- 
ual custom.  For  instance,  in  two  decisions  rendered  at 
the  October  term,  1905,  written  by  different  justices, 
one  used  the  singular  and  the  other  the  plural  form.^ 

In  no  class  of  public  documents  is  greater  attention 
paid  to  the  language  employed  than  in  the  drafting  of 

'  Russian  American  Co.  vs.  United  States,  199  U.  S.  578  ;  Hill  vs. 
American  Surety  Co.  200  U.  S.  203. 


90  THE  PRACTICE  OF  DIPLOMACY 

treaties.  Until  recent  years,  in  these  documents  the 
phrase  "  United  States  "  was  almost  invariably  coupled 
with  a  plural  verb.  This  was  the  case,  for  instance,  in 
the  treaty  of  peace  with  Great  Britain  of  1814,  and 
with  Mexico  of  1848.  But  in  the  treaty  of  peace  with 
Spain  of  1898,  the  term  "  United  States  "  is  uniformly 
treated  in  the  singular.  As  indicating  the  growing 
tendency  in  this  direction,  it  may  be  mentioned  that  the 
fur-seal  arbitration  treaty  of  1892  used  the  "  United 
States  "  in  the  singular,  as  also  the  modus  vivendi  with 
Great  Britain  of  the  same  year.  In  the  Olney-Paunce- 
fote  arbitration  convention  of  1897,  the  "  high  con- 
tracting parties  "  was  the  term  used  to  describe  the  two 
countries,  but  Secretary  Olney,  in  the  correspondence 
which  accompanied  the  negotiation,  always  referred  to 
the  "  United  States  "  in  the  singular.  The  Hay-Paunce- 
f  ote  canal  convention  of  1900  also  treats  "  United  States  " 
as  a  singular  noun;  and  since  that  date  such  has  been 
the  uniform  practice  of  the  Department  of  State. 

The  result  of  my  examination  is  that,  while  the  earlier 
practice  in  referring  to  the  "  United  States "  usually 
followed  the  formula  of  the  Constitution,  our  public 
men  of  the  highest  authority  gave  their  countenance,  by 
occasional  use,  to  the  singular  verb  and  pronoun  ;  that 
since  the  Civil  War  the  tendency  has  been  toward  such 
use  ;  and  that  to-day  among  public  and  professional  men 
it  has  become  the  prevailing  practice. 

An  improvement  in  the  correspondence  of  the  Depart- 
ment of  State  with  its  diplomatic  representatives  abroad 
has  been  frequently  suggested,  but  has  never  been 
made.    It  is  of  course  the  practice  to  keep  the  repre- 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT    91 

sentative  fully  informed  of  all  matters  directly  affecting 
the  duties  of  his  own  mission,  but  he  is  often  without 
official  intelligence  as  to  the  instructions  given  to  other 
American  representatives  at  even  nearby  posts,  and 
respecting  matters  of  general  foreign  policy  advocated 
by  the  home  government ;  whereas  a  knowledge  of  such 
instructions  or  policy  might  make  him  of  much  more 
service  to  his  country  in  his  mission.  When  the  matter 
was  urged  upon  Secretary  Webster  he  recognized  the 
desirability  of  the  innovation,  but  he  said  the  difficulty 
he  found  in  carrying  it  into  effect  was  in  the  great 
labor  it  must  throw  upon  somebody  in  the  department 
already  overtaxed.  This  difficulty  might  be  readily  over- 
come by  a  small  increase  in  the  appropriation  for  the 
department,  but  Congress  has  thus  far  not  seen  proper 
to  vote  the  necessary  sum. 

The  necessity  for  an  increase  of  appropriations  by 
Congress  for  salaries  of  diplomatic  officers  and  the  other 
expenses  of  maintaining  their  missions  has  been  a 
fruitful  topic  of  discussion  from  the  foundation  of  the 
government,  and  was  never  more  earnestly  urged  upon 
popular  attention  than  to-day.  Hence  it  calls  for  some 
consideration  here. 

It  is  a  curious  fact  that  in  the  early  period  after  the 
establishment  of  embassies  it  was  the  practice  for  the 
government  to  which  the  ambassador  was  accredited  to 
defray  his  expenses.  For  instance,  we  have  the  record 
that  the  court  of  Vienna  in  1679  appropriated  a  sum 
equal  to  $2000  a  week  to  meet  the  expenses  of  a  Rus- 
sian embassy,  and  to  the  Turkish  embassy  something 
over  $1000.   A  century  later  the  Turkish  embassy  at 


92  THE  PRACTICE  OF  DIPLOMACY 

the  same  court  cost  the  latter  2000  rubles  daily.  The 
papal  legate  at  Paris  in  1625  cost  the  king  of  France 
2500  livres  daily.  The  celebrated  Lord  Macartney 
British  embassy  to  China  is  said  to  have  cost  the  Chi- 
nese government  the  equivalent  of  ^850,000. 

But  in  the  course  of  time  these  splendid  and  extrava- 
gant expenditures  became  both  burdensome  to  the  court 
^  I  which  furnished  them  and  Jbumiliating  to  the  repre- 
sentatives  of  the  country  receiving  them,  and  it  came 
to  be  the  practice  of  each  government  to  defray  the 
expenses  of  its  own  mission ;  but  it  was  assumed  that 
this  should  be  done  on  a  scale  befitting  the  dignity  and 
standing  of  the  nation,  and  most  governments  have 
sought  to  keep  this  standard  in  view  in  making  their 
appropriations  for  the  diplomatic  service. 

An  envoy  who  is  sent  abroad  to  represent  his  country 
ought  not  to  be  expected  to  maintain  a  more  expensive 
establishment  than  is  warranted  by  the  salary  paid  him, 
and  yet  every  American  minister  accredited  to  the  lead- 
ing capitals  of  Europe,  who  in  any  degree  meets  the 
expectations  of  his  countrymen,  spends  annually  more 
than  he  receives  from  the  national  treasury.  This  fact 
has  been  the  source  of  criticism  on  and  appeals  to  Con- 
gress ever  since  the  organization  of  the  government. 
Jefferson,  when  minister  to  France,  represented  both  to 
the  Continental  Cong-ress  and  to  his  friends  that  he 
could  not  live  on  his  salary,  and  suggested  a  more 
liberal  appropriation.  To  Mr.  Jay,  secretary  for  foreign 
affairs,  he  wrote  as  follows :  "  It  is  a  usage  here  (and  I 
suppose  at  all  courts)  that  a  minister  resident  shall  estab- 
lish his  house  in  the  first  instance.    If  this  is  done  out 


DUTIES  OF  A  DIPLOMAT  TO   HIS  GOVERNMENT    93 

of  his  salary  he  will  be  a  twelfth  month  absent  without 
a  copper  to  live  on.  It  is  the  universal  practice,  there- 
fore, of  all  nations  to  allow  the  outfit  as  a  separate 
article  from  the  salary.  I  have  inquired  into  the  usual 
amount  of  it.  I  find  the  sovereign  sometimes  pays 
the  actual  cost  of  it.  In  other  instances  they  give  a 
service  of  plate  and  a  fixed  sum  for  all  other  articles, 
which  fixed  sum  is  in  no  case  lower  than  a  year's  sal- 
ary. I  desire  no  service  of  plate,  having  no  ambition 
for  splendor.  My  furniture,  carriage,  and  apparel  are 
all  plain,  yet  they  have  cost  me  more  than  a  year's 
salary."  ^ 

The  elder  Adams  in  1785  complained  to  Congress 
that  the  salary  of  his  posts  both  at  The  Hague  and  in 
London  did  not  enable  him  to  make  a  decent  appearance 
at  court  and  in  society.  From  Holland  John  Adams 
wrote  :  "  How  are  we  to  do  ?  We  are  to  negotiate  with 
all  the  ambassadors  here,  that  is,  we  are  to  be  invited 
to  dine  to-morrow  at  a  table  with  three  thousand  pounds 
sterling  upon  it,  and  next  day  we  are  to  return  this 
civility  by  inviting  the  same  company  to  dine  with  us 
upon  earthenware.  I  am  well  aware  of  the  motives  of 
Congress,  which  are  virtuous  and  laudable,  but  we  shall 
find  that  we  cannot  keep  up  our  reputation  in  Europe 
by  such  means,  where  there  is  no  idea  of  the  motives 
and  principles  of  it,  and  where  extreme  parsimony  is 
not  economy.  We  have  never  been  allowed  anything 
to  furnish  our  houses  or  tables,  and  my  double  capacities 
have  obliged  me  to  furnish  myself,  both  in  Holland  and 
France,  which,  besides  exposing  me  to  be  unmercifully 

1  2  U.  S.  Diplomatic  Correspondence  (1783-89),  IGl. 


94  THE  PRACTICE  OF  DIPLOMACY 

robbed  and  plundered  in  my  absence,  has  pinched  and 
straitened  me  confoundedly."  ^ 

The  same  complaint  of  parsimony  in  Congress  has 
continued  through  the  entire  existence  of  the  nation. 
The  younger  Adams  in  1815  reported  from  the  London 
court  to  the  secretary  of  state  "  that  the  annual  salary 
of  an  American  minister  is  insufficient  to  support  a  man 
"with  a  family  —  I  say  not  in  the  style  of  high  official 
rank,  but  in  the  decency  becoming  a  private  gentle- 
man. " 

William  Pinkney,  who  preceded  Mr.  Adams,  a  gentle- 
man of  high  reputation  in  diplomacy,  as  cabinet  minis- 
ter, and  as  the  acknowledged  leader  of  the  bar  of  his 
day,  after  a  four  years'  residence  at  London,  in  a  letter 
to  President  Madison,  begging  to  be  reheved  of  the 
mission,  wrote :  "  Upon  a  recent  inspection  of  my  pri- 
vate affairs,  it  appears  that  my  pecuniary  means  are 
more  completely  exhausted  than  I  had  supposed,  and 
that  to  be  honest  I  must  hasten  home. 

"  The  compensation  (as  it  is  oddly  called)  allotted  by 
the  Government  to  the  maintenance  of  its  representative 
abroad  is  a  pittance,  which  no  economy,  however  rigid, 
or  even  mean,  can  render  adequate.  It  never  was  ade- 
quate I  should  think ;  but  it  is  now  (especially  in  Lon- 
don) far  short  of  that  just  indemnity  for  unavoidable 
expenses  which  every  government,  no  matter  what  its 
form,  owes  to  its  servants. 

"  I  have  in  fact  been  a  constant  and  progressive  loser, 
and  at  length  am  incapable  of  supplying  the  deficiencies 
of  the  public  allowance.    These  deficiencies  have  been 

1  9  John  Adams's  Works,  525. 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT    95 

hitherto  supplied  by  the  sacrifice  of  my  own  capital  in 
America,  or  by  my  credit,  already  pushed  as  far  as  the 
remnant  of  that  capital  will  justify  and  I  fear  somewhat 
farther.  I  cannot,  as  an  honorable  man,  with  my  eyes 
open  to  my  situation,  push  it  farther,  and  of  course  I 
must  retire."  ^ 

The  testimony  of  our  representatives  at  London  in 
later  years  has  been  that  the  situation  had  become  much 
more  aggravated  with  the  increasing  cost  of  hving.  In 
response  to  a  circular  inquiry  sent  to  ministers  abroad, 
in  1851,  by  Secretary  Webster  with  a  view  to  submit- 
ting to  Congress  the  necessity  of  an  increase  in  salaries, 
Abbott  Lawrence,  a  man  of  wealth,  filling  the  mission 
at  London,  reported :  "  You  are  perhaps  aware  that  pos- 
sessing private  means,  I  have  not  been  as  exact  in  my 
expenses  as  I  should  have  been  had  I  been  obliged  to 
measure  them  by  the  amount  of  my  outfit  and  salary." 
He  then  proceeded  to  give  the  cost  of  Hving,  and  states 
that  even  with  economy  the  salary  was  entirely  inade- 
quate, and  that  his  expenses  largely  exceeded  it. 

To  the  same  circular  William  C.  Rives,  a  distin- 
guished citizen  of  Virginia,  minister  to  France,  replied : 
"  The  burden  becomes  insupportable  to  any  but  a  man 
of  very  large  private  fortune,  to  which  class  few  of 
our  public  men  in  America  belong,  and  to  which  it  is 
certainly  not  the  poHcy  of  our  institutions  to  confine 
the  performance  of  high  public  trusts."  ^ 

James  Monroe,  minister  abroad,  secretary  of  state, 
and  President,  urged  upon  Congress  a  more  liberal  scale 

1  Wheaton's  Life  of  Pinkney,  105,  106. 

2  S.  Ex.  Doc.  No.  93,  32d  Cong.,  1st  Sess, 


96  THE  PRACTICE  OF  DIPLOMACY 

of  appropriations  for  the  diplomatic  service,  with  state- 
ments such  as  the  following  :  "  A  minister  can  be  useful 
only  by  filling  his  place  with  credit  in  the  diplomatic 
corps,  and  in  the  corresponding  circle  of  society  in  the 
country  in  which  he  resides,  which  is  the  best  in  every 
country.  By  taking  the  proper  ground,  if  he  possesses 
the  proper  qualifications,  and  is  furnished  with  adequate 
means,  he  will  become  acquainted  with  all  that  passes, 
and  from  the  highest  and  most  authentic  sources.  .  .  . 
Deprive  him  of  the  necessary  means  to  sustain  this 
ground,  separate  him  from  the  circle  to  which  he  belongs, 
and  he  is  reduced  to  a  cipher."  ^ 

Mr.  Livingston,  secretary  of  state  under  President 
Jackson,  urged  upon  Congress  similar  action.  "  If,"  he 
argued,  "  none  of  the  ministers  we  have  sent  abroad, 
however  prudent,  have  been  able  to  five  on  the  salaries 
that  are  allowed  them,  the  conclusion  is  inevitable  that 
the  salaries  ought  to  be  increased,  or  the  ministers  should 
be  recalled.  If  the  mission  is  useful,  it  ought  to  be 
supported  at  the  public,  not  private  expense,  and  the 
representative  of  a  great  nation  ought  not  to  be  obHged 
to  employ,  in  devising  parsimonious  expedients  for  their 
support,  that  time  and  those  talents  which  ought  to  be 
occupied  in  the  service  of  their  country."  ^ 

Similar  views  might  be  quoted  from  Clay,  Webster, 
and  various  Presidents  and  secretaries  in  later  years, 
showing  that  the  sentiment  of  those  best  qualified  to 
judge  was  and  is  that  the  scale  of  appropriations  for  our 
diplomatic  service  has  been  inadequate  to  its  require- 

1  Annals  of  Congress,  14th  Cong.,  1st  Sess.,  1735. 
»  H.  R.  Ex.  Doc.  94,  22d  Cong.,  2d  Sess. 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT    97 

ments.  But  so  far  from  Congress  being  influenced  by 
these  considerations,  it  has,  as  we  have  seen,  authorized 
a  higher  rank  for  certain  of  our  envoys  abroad,  largely 
increasing  their  expenditures  without  adding  to  their 
salaries,  notwithstanding  that  the  secretary  of  state  had 
advised  Congress  that  such  action  would  be  a  great  in- 
justice to  them.  A  comparison  of  the  allowances  made 
by  other  governments  to  their  diplomatic  representa- 
tives at  the  capitals  of  Europe  to  which  American  am- 
bassadors are  now  accredited  will  show  that  they  are 
from  two  to  three  times  as  great  as  those  received  by 
the  latter. 

As  a  complement  to  the  citations  already  made  from 
our  own  public  men  on  the  subject  of  salaries,  I  desire 
to  quote  once  more  from  a  competent  British  author- 
ity. Lord  Palmerston,  from  whose  testimony  before  the 
Parliamentary  committee  the  following  extract  is 
made :  — 

"  In  order  to  preserve  good  relations  with  a  country, 
it  is  not  sufficient  simply  to  have  a  person  living  in  town 
as  cheaply  as  he  can  afford  to  exist,  because  the  social 
position  of  your  representative  is  a  very  important  ele- 
ment in  his  power  to  be  useful.  In  regard  to  his  inter- 
course with  the  ministers  of  the  country,  great  facilities 
and  great  means  of  good  understanding  are  afforded  by 
easy  social  intercourse,  which  can  only  possibly  be  ob- 
tained by  his  being  able  to  receive  them,  as  well  as  also 
being  received  by  them.  Again,  it  is  of  great  impor- 
tance that  your  ambassador  should  be  in  habits  of  social 
intercourse  with  public  men  not  in  office  ;  that  he  should 
have  the  means  of  receiving  them,  becoming  acquainted 


98  THE  PRACTICE  OF  DIPLOMACY 

with  their  views,  and  explaining  to  them  the  views  and 
poHcy  of  his  own  country.  Therefore,  I  think  it  is  of 
great  imj^ortanee  to  this  country  that  your  representa- 
tive should  be  in  such  an  easy  position  with  regard  to 
money  affairs  as  may  enable  him  to  receive  hospitably 
persons  of  all  kinds,  and  I  may  say  also  of  different 
nations."  ^ 

In  his  testimony  before  this  committee  Lord  Palmer- 
ston  stated  that  the  salary  of  the  British  ambassador 
in  Paris  was  not  sufficient  to  meet  the  outlay  actually 
made  by  him.  And  yet  the  salary  and  allowances  of 
the  British  ambassador  are  more  than  three  times  as 
great  as  those  received  by  the  American  ambassador  in 
that  capital.  I  have  been  informed  on  the  best  author- 
ity that  when  the  post  of  British  ambassador  in  Paris 
became  vacant  a  few  years  ago  by  the  retirement  of 
Lord  Dufferin,  it  was  offered  in  succession  to  three 
British  statesmen  of  prominence,  who  declined  the  honor 
on  the  ground  that  they  could  not  afford  the  extra 
expense  that  would  necessarily  have  to  be  met  from 
their  private  purse. 

The  great  expense  has  debarred  many  prominent 
Americans  from  accepting  diplomatic  posts.  Mr.  Cal- 
houn, in  1819,  was  offered  the  mission  at  Paris,  but  he 
answered  that  he  was  well  aware  that  a  familiar  practical 
acquaintance  with  Europe  was  indispensable  to  complete 
the  education  of  an  American  statesman,  and  regretted 
that  his  fortune  would  not  bear  the  cost  of  it.  Again, 
in  1845,  he  was  tendered  the  mission  to  England,  but 
declined  for  the  same  reason.    George  WilHam  Curtis, 

1  S.  Ex.  Doc.  93,  32d  Cong.,  1st  Sess.  8. 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT    99 

Senator  Hoar,  and  other  able  and  cultured  public  men 
have  likewise  been  forced  to  decline  our  highest  diplo- 
matic posts. 

This  fact  may  suggest  the  inquiry  whether  the  style 
of  Hving  of  ambassadors  and  the  demands  made  upon 
them  have  not  exceeded  the  proper  bounds,  and  whether 
there  is  not  some  force  in  the  argument  used  to  justify 
Congress  in  its  course,  that  it  is  not  becoming  to  our 
democratic  representatives  abroad  to  seek  to  rival  the 
representatives  of  royalty  in  an  ostentatious  and  extrav- 
agant style  of  living.  It  is  also  due  the  government  of 
the  United  States  to  state  that  there  are  occasions  on 
which  the  extra  expenses  of  its  diplomatic  officials  are 
met  by  special  appropriations,  as,  for  instance,  at  the 
grand  ceremony  of  the  coronation  of  the  Czar  of  Russia 
at  Moscow,  a  few  years  ago,  the  expenses  of  the  legation 
in  installing  itself  in  a  house  and  entertaining  during 
that  event  were  provided  by  our  government. 

Mr.  Jefferson  during  his  presidency  offered  General 
Armstrong  the  mission  to  France,  to  succeed  Chancellor 
Livingstone,  who  had  tendered  his  resignation.  Antici- 
pating an  objection  which  the  general  might  raise,  he 
wrote  him  :  "  You  have  doubtless  heard  of  the  com- 
plaints of  our  foreign  ministers  as  to  the  incompetence 
of  their  salaries.  I  believe  it  would  be  better  were  they 
somewhat  enlarged.  Yet  a  moment's  reflection  will 
satisfy  you  that  a  man  may  live  in  any  country  on  any 
scale  he  pleases.  From  an  ambassador  there  a  certain 
degree  of  representation  is  expected.  But  the  lower 
grades  of  envoy,  minister  resident,  and  charge  have 
been  introduced  to  accommodate  both  the  sovereign  and 


100  THE  PRACTICE  OF  DIPLOMACY 

minister  as  to  the  scale  of  expense.  When  I  was  in 
Paris  two  thirds  of  the  diplomatic  men  of  the  second 
and  third  orders  entertained  nobody.  Yet  they  were  as 
much  invited  out  and  honored  as  those  of  the  same 
grade  who  entertained.  I  suspect  from  what  I  hear  that 
the  Chancellor,  having  always  stood  on  a  line  with  those 
of  the  first  expense  here,  has  not  had  resolution  enough 
to  yield  place  there,  and  that  he  has  taken  up  the  am- 
bassadorial scale  of  expense.  This  procures  one  some 
sunshine  friends  who  like  to  eat  of  your  good  things, 
but  has  no  effect  on  the  men  of  real  business,  the  only 
men  of  real  use  to  you,  in  a  place  where  every  man  is 
estimated  at  what  he  really  is."  ^ 

Unfortunately,  Mr.  Jefferson  when  in  Paris  did  just 
what  he  condemned  in  Chancellor  Livingston,  and  it 
is  understood  that  he  laid  there  the  foundation  of 
his  later  financial  misfortunes.  Nevertheless,  the  views 
expressed  in  the  foregoing  extract  are  well  founded,  and 
emphasize  the  fact  that  too  much  importance  has  been 
attached  to  social  display  in  the  diplomatic  service.  A 
palace,  uniformed  lackeys,  and  extravagant  entertain- 
ments add  little  to  the  accomplishments  of  a  weak  and 
unskillful  representative.  Social  courtesies  may  smooth 
the  way  of  the  able  diplomatist,  but  they  are  far  from 
being  the  most  important  of  the  elements  which  make 
his  services  useful  to  his  government. 

Congress  has  shown  an  indisposition  to  make  any 
material  increase  in  the  salaries  of  our  foreign  represent- 


1  8  The  Writings  of  Thomas  Jefferson ,  edited  by  Paul  Leicester  Ford, 
302. 


DUTIES  OF  A  DIPLOMAT  TO  HIS  GOVERNMENT    101 

atives,  but  there  is  a  measure  which  it  might  well  adopt 
which  would  bring  great  relief  to  the  service.  I  have  al- 
ready referred  to  the  great  embarrassment  to  the  Amer- 
ican representative  going  abroad  for  the  first  time  to 
enter  upon  his  duties,  to  find  that  his  first  task  is  to 
search  for  a  suitable  house  in  which  to  install  himself. 
The  proposition  has  frequently  been  made  to  Congress 
to  purchase  or  lease  permanent  residences  for  our  diplo- 
matic representatives.  President  Cleveland  was  especially 
urgent  in  bringing  this  subject  to  the  attention  of  Con- 
gress, in  two  successive  messages,  and  Secretary  Olney 
submitted  to  that  body  a  special  communication  embody- 
ing the  reports  of  our  ministers  abroad  as  to  the  cost  of 
such  residences.  From  one  of  Mr.  Cleveland's  messas'es 
I  make  the  following  extract :  — 

"  I  am  thoroughly  convinced  that  in  addition  to  their 
salaries  our  ambassadors  and  ministers  at  foreign  courts 
should  be  provided  by  the  government  with  official  resi- 
dences. The  salaries  of  these  officers  are  comparatively 
small  and,  in  most  cases,  insufficient  to  pay,  with  other 
necessary  expenses,  the  cost  of  maintaining  household 
establishments  in  keeping  with  their  important  and  deH- 
cate  functions.  The  usefulness  of  a  nation's  diplomatic 
representative  undeniably  depends,  to  a  great  extent, 
upon  the  appropriateness  of  his  surroundings,  and  a 
country  like  ours,  while  avoiding  unnecessary  gHtter  and 
show,  should  be  certain  that  it  does  not  suffer  in  its 
relations  with  foreign  nations  through  parsimony  and 
shabbiness  in  its  diplomatic  outfit.  These  considerations, 
and  the  other  advantages  of  having  fixed  and  somewhat 


102  THE   PRACTICE  OF  DIPLOMACY 

permanent  locations  for  our  embassies,  would  abundantly 
justify  the  moderate  expenditure  necessary  to  carry  out 
this  suggestion."  ^ 

If  Congress  would  be  as  liberal  with  our  foreign  re- 
presentatives as  it  has  been  in  providing  the  two  commo- 
dious and  sumptuous  palaces  for  the  accommodation  of 
its  own  members,  our  embassies  and  legations  in  the  lead- 
ing capitals  in  Europe  could  be  supplied  with  permanent 
homes.  If  an  appropriation  cannot  be  obtained  sufficient 
to  purchase  residences,  it  should  be  entirely  feasible  to 
secure  an  appropriation  that  would  enable  the  secretary 
of  state  to  lease  for  a  term  of  years  suitable  houses  in 
those  and  other  prominent  capitals.  Such  a  course  has 
been  adopted  by  the  government  of  Great  Britain  in  a 
number  of  countries.  If  such  residences  should  be  leased 
and  furnished,  they  would  accomplish  three  much  desired 
ends.  First,  they  would  constitute  for  American  em- 
bassies and  legations  a  permanent  home,  much  to  the 
relief  of  our  representatives  and  to  the  convenience  of 
all  persons  having  business  with  them.  Second,  they 
would  enable  public  men  of  moderate  means  to  accept 
these  posts.  Third,  they  would  prevent  rich  appointees 
from  renting  great  palaces  and  making  extravagant 
displays  of  wealth,  very  unseemly  in  repubbcan  repre- 
sentatives. 

1  9  Presidents'  Messages,  640,  723  ;  U.  S.  For.  Rel.  xc;  Sen.  Doc.  No. 
128,  54th  Cong.,  2d  Sess. 


CHAPTER  VI 

DUTIES    OF    A    DIPLOMAT  TO    THE    FOREIGN    GOV- 
ERNMENT 

We  come  now  to  consider  the  duties  of  the  envoy  having 
relation  to  the  government  of  the  country  of  his  resi- 
dence and  its  people ;  and  it  is  in  discharge  of  those 
duties  that  the  skill,  discretion,  and  tact  of  the  diplomat 
are  most  brought  into  exercise. 

There  is  no  just  foundation  for  the  prevailing  popular 
impression  that  diplomacy  is  somehow  associated  with 
deceit  and  cunning,  and  that  practice  in  these  artifices 
gives  great  advantage  in  international  intercourse.  The 
experienced  British  statesman,  Lord  Clarendon,  on  being 
asked  if  there  was  any  special  art  required  in  diplomacy, 
rephed :  "  No ;  I  think  the  special  art  required  is  this 
— to  be  perfectly  honest,  truthful,  and  straightforward." 
An  ex-diplomatist,  who  wrote  a  treatise  suggested  by 
his  service,  with  dry  witticism  thus  sums  up  the  art : 
"  Take  snuff  often  and  slowly,  sit  with  your  back  to  the 
light,  and  speak  the  truth ;  the  rest  you  will  learn  by 
observing  your  older  colleagues."  Bernard  well  remarks 
that  among  the  most  distinguished  names  in  diplomacy 
are  those  of  men  notoriously  not  only  true  but  frank. 

The  standard  of  conduct  for  an  American  diplomatist 
was  fixed  by  the  first  President  of  the  United  States  in 
the  instructions  given  by  the  secretary  of  state  to  Mr. 


104  THE  PRACTICE  OF  DIPLOMACY 

Jay,  special  minister  to  Great  Britain  in  1794 ;  and  it 
is  a  matter  of  just  pride  for  the  country  that  it  has  sel- 
dom been  departed  from  by  his  successors.  It  was  as 
follows  :  "  It  is  the  President's  wish  that  the  character- 
istics of  an  American  minister  should  be  marked  on  the 
one  hand  by  a  firmness  against  improper  compliances, 
and  on  the  other  by  sincerity,  candor,  truth,  and  pru- 
dence, and  by  a  horror  of  finesse  and  chicane."  ^  Secre- 
tary Hay  in  a  public  address  declared  the  "  Golden  Rule  " 
to  be  the  cardinal  principle  of  American  diplomacy,  and 
the  enthusiasm  with  which  Lis  utterance  was  received 
proved  its  hearty  indorsement  by  the  American  people. 
While  it  is  perfectly  true  that  frankness  and  straight- 
forward action  should  mark  the  conduct  of  the  diplo- 
matist, if  he  meets  the  requirements  of  his  position,  he 
must  exercise  constant  circumspection,  and  occasions 
will  frequently  arise  when  his  ability  and  tact  will  be 
put  to  the  test. 

The  first  care  of  an  envoy  in  his  relation  to  his  mis- 
sion is  to  make  himself  persona  grata  at  the  foreign 
office,  and  at  the  court  or  in  government  circles.  While 
a  self-respecting  minister  will  never  play  the  part  of 
a  toady,  he  should  strive  to  make  himself  personally 
popular  by  studying  the  amenities  of  official  and  social 
intercourse,  and  by  conformity  to  all  innocent  local 
customs,  sentiments,  and  even  prejudices.  It  is  in  these 
relations  that  the  importance  is  seen  of  sending  abroad 

*  1  American  State  Papers,  For.  Rel.  497. 

"Diplomacy  is  like  a  midnight  ghost;  a  menacing  giant  to  the  sight  of 
those  that  fear  it,  it  melts  like  a  fine  mist  before  those  who  resolutely  go 
to  meet  it."  —  Mazzini  to  Victor  Emmanuel,  letter  September  20, 1859. 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    105 

not  only  men  of  ability  but  of  gentlemanly  accomplish- 
ments. A  boor  in  manners,  or  one  disagreeable  instead 
of  afPable  in  his  demeanor,  can  hardly  expect  to  make 
himself  popular  in  social  circles,  or  even  to  be  very  suc- 
cessful in  the  dispatch  of  the  business  of  his  country. 

Secretary  Adams  in  his  Diary  gives  his  estimate  of 
the  qualities  of  a  diplomat,  in  discussing  the  accom- 
plishments of  one  of  the  British  ministers  at  Washing- 
ton dui'ing  his  incumbency  of  office,  as  follows  :  "  Bagot 
is  about  thirty-five,  tall,  well-proportioned,  and  with  a 
remarkably  handsome  face ;  perfectly  well-bred,  and  of 
dignified  and  gentlemanly  deportment.  The  principal 
feature  of  his  character  is  discretion,  one  of  the  most 
indispensable  qualities  of  a  good  negotiator ;  but  neither 
his  intellectual  power  nor  his  acquisitions  are  in  any 
degree  striliing.  His  temper  is  serious,  but  cheerful. 
He  has  no  depth  of  dissimulation,  though  enough  to 
suppress  his  feelings,  when  it  is  for  his  interest  to  con- 
ceal them.  He  has  resided  here  three  years,  and,  though 
coming  immediately  after  a  war  in  which  the  national 
feelings  here  were  highly  exasperated  against  his  coun- 
try, has  made  himself  universally  acceptable.  No  English 
minister  has  ever  been  so  popular ;  and  the  mediocrity 
of  his  talents  has  been  one  of  the  principal  causes  of 
his  success.  This  is  so  obvious  that  it  has  staggered  my 
behef  in  the  universality  of  the  maxim  that  men  of  the 
greatest  talents  ought  to  be  sought  out  for  diplomatic 
missions.  Bagfot  has  become  a  better  minister  than  a 
much  abler  man  would  have  been ;  better  for  the  in- 
terests of  England  —  better  for  the  tranquillity  of  this 
country  —  better   for   the   harmony  between   the  two 


106  THE  PRACTICE  OF  DIPLOMACY 

nations,  for  his  own  quiet  and  for  the  comfort  of  those 
with  whom  he  has  had  of&eial  intercourse  here. 

"  For  a  negotiation  that  would  require  great  energy 
of  mind,  activity  of  research,  or  fertiHty  of  expedients, 
such  a  man  would  not  be  competent ;  but  to  go  through 
the  ordinary  routine  of  business  and  the  common  inter- 
course of  society,  to  neutralize  fretful  passions  and  soothe 
prejudices,  a  man  of  good  breeding,  inoffensive  man- 
ners, and  courteous  deportment  is  nearer  to  the  true 
diplomatic  standard  than  one  with  the  genius  of  Shake- 
speare, the  learning  of  Bentley,  the  philosophical  pene- 
tration of  Berkeley,  or  the  wit  of  Swift."  ^ 

The  relations  of  a  resident  envoy  to  the  foreign  office 
should  be  marked  by  the  strictest  conformity  to  the 
etiquette  of  that  office.  It  is  an  established  rule  of  the 
Department  of  State  that  all  official  business  of  foreign 
envoys  should  be  transacted  through  the  secretary  of 
state,  whether  they  relate  to  his  or  other  branches  of 
the  government.  Diplomats  sometimes  see  other  heads 
of  departments  informally  about  matters  pending  before 
them,  but  they  never  should  do  so  without  the  consent 
of  the  secretary  of  state  previously  obtained ;  and  a 
similar  practice  is  observed  by  other  governments. 

John  Quincy  Adams,  probably  the  highest  American 
authority  on  diplomatic  usage,  held  that  no  foreign 
minister  had  a  right  to  take  official  notice  of  informal 
remarks  made  by  the  President  at  one  of  his  "  drawing- 
rooms,"  nor  to  speak  or  correspond  with  him  about 
pending  negotiations  with  the  secretary  of  state.^  This 
practice  was  established  soon  after  the  organization  of 

1  4  J.  Q.  Adams's  Memoirs,  338.  »  ib,  269. 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    107 

the  government.  M.  Moustier,  French  minister  (1788- 
89),  having  quarreled  with  Secretary  Jay,  sought  to 
carry  on  a  correspondence"  with  President  Washington, 
but  this  the  latter  declined  in  a  letter  stating  clearly  the 
diplomatic  usage.^  A  similar  course  had  to  be  taken 
with  the  impetuous  French  minister  of  the  Revolutionary 
Directory,  M.  Genet. 

There  prevails  a  theory  that  ambassadors,  because  of 
their  supposed  investiture  of  a  special  capacity  to  repre- 
sent their  sovereign  or  head  of  their  state,  have  the 
right  to  demand  an  audience  at  any  time  with  the  chief 
of  the  nation  to  which  they  are  accredited,  and  that 
such  right  does  not  pertain  to  diplomats  of  the  next 
lower  grade  of  ministers  plenipotentiary.  It  is  a  theory 
which  has  come  down  from  the  mediaeval  period,  but 
in  modern  times  has  become  a  pure  fiction.  Vattel  says 
of  ambassadors  that  their  "  representation  is  in  reality 
of  the  same  nature  as  that  of  the  envoy  "  or  minister 
plenipotentiary.  Calvo,  one  of  the  highest  living  au- 
thorities on  international  law,  referring  to  the  claim  that 
ambassadors  "  have  a  formal  right  of  treating  directly 
with  the  sovereign,  of  which  the  other  ministers  are 
deprived,"  says :  "  This  is  a  distinction  without  a  mean- 
ing, especially  since  the  organization  of  modern  nations 
no  longer  rests  exclusively  upon  the  monarchical  prin- 
ciple, and  therefore  renders  it  impossible  for  sovereigns 
personally  to  conduct  international  negotiations.  .  .  . 
In  our  eyes  the  agents  of  the  first  two  classes  are  ex- 
actly on  the  same  line  from  the  point  of  view  of  their 

^  11  The  Writings  of  George  Washington,  edited  by  Worthington  C. 
Ford  (1889),  305. 


108  THE  PRACTICE  OF  DIPLOMACY 

character  as  of  their  duties  and  powers."  Martens,  an 
authority  on  diplomatic  ceremonies  and  practice,  writes : 
"Considered  from  the  point  of  view  of  international 
law,  all  diplomatic  agents,  without  regard  to  their  class, 
are  equal.  This  equality  is  shown  by  their  all  possessing, 
in  a  like  degree,  all  diplomatic  rights.  .  .  .  Many  writers 
have  tried  to  infer  from  the  rules  of  Vienna  that  am- 
bassadors, as  representing  the  person  of  their  sovereign, 
have,  in  distinction  from  other  diplomatic  agents,  the 
formal  right  of  treating  with  the  sovereign  to  whom 
they  are  sent,  and  of  being  received  in  audience  by  him 
at  any  time.  We  cannot  admit  this  inference.  As  Prince 
Bismarck  opportunely  remarked,  no  ambassador  has  a 
right  to  demand  a  personal  interview  with  the  sovereign. 
The  constitutional  government  of  west-European  mon- 
archies compels  ambassadors  to  treat  with  the  minister 
of  foreign  affairs."  Lawrence  (T.  J.),  one  of  the  latest 
authors  on  international  law,  says :  "  Ambassadors,  as 
representing  the  person  of  their  sovereign,  are  held  to 
possess  a  right  of  having  personal  interviews,  whenever 
they  choose  to  demand  them,  with  the  sovereign  of  the 
state  to  which  they  are  accredited.  But  modern  practice 
grants  such  interviews  on  suitable  occasions  to  all  repre- 
sentatives of  foreign  powers,  whatever  may  be  their 
rank  in  the  diplomatic  hierarchy.  Moreover,  the  privi- 
lege can  have  no  particular  value,  because  the  verbal 
statements  of  a  monarch  are  not  state  acts.  Formal  and 
binding  international  negotiations  can  be  conducted 
only  through  the  minister  of  foreign  affairs."  ^ 

1  The  Principles  of  International  Law,  T.  J.  Lawrence  (1895),  263. 
Commenting  on  the  practice  which   has  recently  grown  up  of  the 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    109 

The  following  incident,  which  attracted  much  com- 
ment at  the  time,  illustrates  the  evil  results  of  the  prac- 
tice of  foreign  representatives  making  verbal  represen- 
tations to  the  President.  In  1857,  when  the  relations 
between  the  two  countries  were  strained  on  account  of 
Central  American  affairs,  Lord  Napier,  British  minister 
in  Washington,  sought  an  interview  with  President 
Buchanan,  and  made  certain  verbal  representations  to 
him  as  to  the  attitude  of  his  government  respecting  the 
Clayton-Bulwer  treaty.  These  representations  consti- 
tuted the  basis  of  a  message  to  Congress.  Lord  Napier, 
not  being  supported  by  his  government  in  the  views 
expressed,  felt  it  necessary  to  make  the  interview  the 
subject  of  an  official  communication  to  the  secretary  of 
state,  alleging  that  it  was  unofficial  and  confidential, 

ambassadors  freely  visiting  the  White  House  for  conference  with  the 
President,  Professor  J.  B.  Moore,  in  his  recent  work,  says  :  "  Among  the 
extraordinary  privileges  commonly  said  to  belong  to  the  ambassador,  by 
reason  of  his  representing  the  '  person  '  of  the  '  sovereign,'  is  that  of  per- 
sonal audience  on  matters  of  business  with  the  head  of  the  state.  In 
Europe,  with  the  substitution  of  constitutional  governments  for  absolute 
monarchies,  this  privilege  has  become  merely  nominal,  but  in  Washington 
it  has  been  revived  in  something  like  its  pristine  vigor,  direct  intercourse 
with  the  President,  without  regard  to  the  Secretary  of  State,  being  con- 
stantly demanded  and  practiced.  In  the  days  when  the  highest  rank 
was  that  of  an  envoy  extraordinary  and  minister  plenipotentiary,  the 
privilege  of  transacting  diplomatic  business  directly  with  the  President 
was  rarely  accorded  to  a  foreign  minister,  not  only  because  the  time  of 
the  President  was  supposed  to  be  already  sufficiently  occupied,  but  also 
because  the  White  House  is  not  an  office  of  record,  the  custodian  of  the 
diplomatic  archives  being  the  Secretary  of  State,  who  is  the  legal  organ 
and  adviser  of  the  President  in  foreign  affairs,  and  who,  by  reason  of  his 
preoccupation  with  the  business  of  his  own  department,  is  supposed  to 
possess  that  mastery  of  its  details  which  is  so  essential  to  the  care  of 
public  as  well  as  of  private  interests."  —  American  Diplomacy,  its  Spirit 
and  Achievements,  by  John  Bassett  Moore  (1905),  264. 


110  THE  PRACTICE  OF  DIPLOMACY 

and  of  such  a  spontaneous  nature  that  it  ought  not 
to  have  been  cited  against  his  government,  and  had  no 
binding  official  character ;  and  he  added  that  if  he  had 
been  authorized  to  make  an  international  declaration  on 
so  important  a  matter,  he  would  have  presented  it  "  in 
writing  in  the  usual  manner."  ^ 

It  is  not  permissible  for  a  diplomatic  representative  to 
make  complaint  to  the  secretary  of  state  of  the  discus- 
sion in  Congress  or  to  criticise  the  speeches  of  members. 
This  was  exphcitly  stated  by  Secretary  Adams  in  a  cele- 
brated interview  of  a  very  animated  character  which  he 
held  with  Sir  Stratford  Canning  (afterwards  Lord  Strat- 
ford de  Redcliffe),  British  minister.  The  following  is  an 
extract  from  Mr.  Adams's  Diary,  giving  a  report  of  the 
heated  interview  :  "  With  some  abatement  of  the  tone, 
but  in  the  same  peremptory  manner,  he  said,  '  Am  I  to 
understand  that  you  refuse  any  further  conference  with 
me  on  this  subject?' 

"I  said,  *  No.  But  you  will  understand  that  I  am  not 
pleased  either  with  the  grounds  upon  which  you  have 
sought  this  conference,  nor  with  the  questions  which 
you  have  seen  fit  to  put  to  me.  The  only  foundation 
upon  which  you  rest  your  application  is  a  remark  made 
by  a  member  of  Congress  in  a  debate,  and  a  publication 
of  another  member  of  Congress  in  a  newspaper.  The 
members  of  the  legislatures  of  this  country  are  not  only 
perfectly  independent  of  the  executive,  but  the  execu- 
tive cannot  permit  itself  to  be  questioned  by  any  foreign 
minister  upon  anything  said  or  done  by  them.  .  .  . 

" '  What  would  be  thought  of  an  American  minister  in 

*  British  and  Foreign  State  Papers,  1857,  vol.  48,  p.  651. 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    111 

England  who  should  presume  to  call  upon  the  secretary 
of  state  for  foreign  affairs  to  account  for  speeches  or 
writings  of  members  and  committees  of  Parliament  ? ' 

"He  said  he  was  much  mistaken  if,  in  the  lately 
published  correspondence  respecting  the  slave  trade, 
there  had  not  been  references  by  Mr.  Rush  [American 
minister  in  London]  to  speeches  and  proceedings  in 
Parliament. 

"  Undoubtedly,'  said  I,  *  Mr.  Rush's  dispatches  to  his 
own  government;  and  we  make  no  question  of  your 
right  to  report  to  your  own  government  anything  said 
or  done  in  Congress  by  any  of  its  members."  ^ 

The  question  of  the  right  of  a  foreign  minister  to 
criticise  or  comment  on  legislation  pending  in  Congress 
in  his  communications  to  the  secretary  of  state  was 
made  the  subject  of  discussion  recently  in  Congress. 
The  Chinese  minister  sent  a  note  to  Secretary  of  State 
Hay  in  1902,  in  which  he  took  exception  to  the  pro- 
posed legislation  respecting  Chinese  immigration,  basing 
his  action  upon  a  provision  of  the  treaty  of  1880  which 
contemplated  representations  of  a  diplomatic  character 
respecting  Congressional  legislation.  Secretary  Hay 
sent  a  copy  of  the  minister's  note  to  both  houses  of 
Congress.  In  the  debate  on  the  measure  the  attention 
of  the  Senate  was  called  to  the  Chinese  minister's  note 
as  a  breach  of  the  rule  which  forbids  diplomatic  discus- 
sion of  pending  legislation,  but  the  prevailing  sentiment 
seemed  to  be  that  the  provision  of  the  treaty  justified 
the  minister's  conduct.^ 

»  5  J.  Q.  Adams's  Memoirs,  245,  254. 

2  Congressional  Record,  Senate,  April  12,  1902. 


112  THE  PRACTICE  OF  DIPLOMACY 

It  is  also  held  that  the  chief  of  the  department  for 
foreign  affairs  of  the  government  to  which  an  envoy 
is  accredited  may  direct  that  certain  specified  questions 
shall  be  made  the  subject  of  written  communications, 
and  he  may  decline  to  hear  verbal  presentation  of  the 
same.  This  course  was  adopted  by  Mr.  Canning,  sec- 
retary for  foreign  affairs  of  Great  Britain,  towards  the 
American  minister,  Mr.  Pinkney,  in  1808  ;  ^  and  by 
the  secretary  of  state  of  the  United  States  towards  the 
British  minister,  Mr.  Jackson,  in  1806.^  It  was  also 
indicated  by  Secretary  Adams  to  Sir  Stratford  Can- 
ning, in  the  fiery  interview  from  which  an  extract  has 
already  been  made.  From  the  body  of  this  interview, 
as  recorded  in  Mr.  Adams's  Diary,  is  taken  the  follow- 
ing :  ^  "  Without  replying  to  this  remark,  having  found 
the  book,  I  resumed  my  seat,  and,  after  reading  audi- 
bly the  article  of  the  convention  respecting  the  bound- 
ary, said,  '  Now,  sir,  if  you  have  any  charge  to  make 
against  the  American  government  for  a  violation  of 
this  article,  you  will  please  to  make  the  communication 
in  writing.' 

"He  then  said,  with  great  vehemence,  ^  And  do  you 
suppose,  sir,  that  I  am  to  be  dictated  to  in  the  manner 
in  which  I  may  think  proper  to  communicate  with  the 
American  government?' 

"  I  answered,  '  No,  sir,  we  know  very  well  what  are 
the  privileges  of  foreign  ministers,  and  mean  to  respect 
them.  But  you  will  give  us  leave  to  determine  what 
communications  we  will  receive,  and  how  we  will  re- 

1  3  State  Papers,  For.  Rel.  314.  «  lb.  308. 

^  5  J.  Q.  Adams's  Memoirs,  244. 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    113 

ceive  them ;  and,  you  may  be  assured,  we  are  as  little 
disposed  to  submit  to  dictation  as  to  exercise  it.' 

"  He  then,  in  a  louder  and  more  passionate  tone  of 
voice,  said,  *  And  am  I  to  understand  that  I  am  to  be 
refused  henceforth  any  conference  with  you  on  the 
business  of  my  mission  ?  ' 

"  '  Not  at  all,  sir,'  said  I ;  *  my  request  is  that  if 
you  have  anything  further  to  say  to  me  upon  this  sub- 
ject, you  would  say  it  in  writing.  And  my  motive  is, 
to  avoid  what,  both  from  the  nature  of  the  subject  and 
from  the  manner  in  which  you  have  thought  proper  to 
open  it,  I  foresee  will  tend  only  to  mutual  irritation,  and 
not  to  an  amicable  arrangement.'  " 

The  participants  in  this  spirited  colloquy  were  the 
most  distinguished  diplomats  of  their  respective  coun- 
tries during  their  generation,  and  it  is  interesting  to 
have  their  estimates  of  each  other.  Mr.  Adams  wrote, 
while  these  sharp  controversies  were  still  fresh  in  his 
mind  :  "  Mr.  Canning  .  .  .  departs  to-morrow.  I  shall 
probably  see  him  no  more.  He  is  a  proud,  high  tem- 
pered Englishman,  of  good,  but  not  extraordinary  parts  ; 
stubborn  and  punctilious,  with  a  disposition  to  be  over- 
bearing, which  I  have  often  been  compelled  to  check  in 
its  own  way.  He  is,  of  all  the  foreign  ministers  with 
whom  I  have  had  occasion  to  treat,  the  man  who  has 
most  severely  tried  my  temper.  Yet  he  has  been  long 
in  the  diplomatic  career,  and  treated  with  governments 
of  the  most  opposite  characters.  He  has,  however,  a 
great  respect  for  his  word,  and  there  is  nothing  false 
about  him.  This  is  an  excellent  quality  for  a  negotiator. 
Mr.  Canning  is  a  man  of  forms,  studious  of  courtesy. 


114  THE  PRACTICE  OF  DIPLOMACY 

and  tenacious  of  private  morals.  As  a  diplomatic  man, 
his  great  want  is  suppleness,  and  his  great  virtue  is  sin- 
cerity." ' 

Lord  Stratford  de  Redcliffe  (Mr.  Canning),  at  the  ripe 
old  age  of  ninety-three,  when  time  had  obliterated  the 
passions  awakened  by  his  stormy  intercourse  with  the 
American  secretary,  wrote :  "  Mr.  Adams  was  more  com- 
manding than  attractive  in  personal  appearance,  much 
above  par  in  abihty,  but  having  the  air  of  a  scholar  rather 
than  a  statesman,  a  very  uneven  temper,  a  disposition  at 
times  well-meaning,  a  manner  somewhat  too  often  domi- 
neering, and  an  ambition  causing  unsteadiness  in  his 
political  career.  My  private  intercourse  with  him  was 
not  wanting  in  kindness  on  either  side.  The  rough  road 
was  that  of  discussion  on  matters  of  business.  .  .  . 
Under  a  waywardness  on  the  surface  there  lay  a  fund 
of  kindly  and  beneficent  intentions  which  ought  to  go 
down  the  stream  of  time  with  the  record  of  his  life  and 
characteristic  qualities."  ^ 

The  subsequent  career  of  the  two  British  diplomats 
—  Bagot  and  Canning  —  confirmed  Secretary  Adams's 
estimate  of  their  capabilities.  Mr.  Bagot  was  transferred 
from  Washington  to  St.  Petersburg,  where  he  was 
assigned  the  important  duty  of  negotiating  with  the 
Russian  government  a  treaty  to  settle  the  marine  and 
land  questions  on  the  northwest  coast  of  America  grow- 
ing out  of  the  Russian  ukase  of  1821.  After  dallying 
with  the  wily  Muscovite  diplomats  for  two  years  and 

1  6  J.  Q.  Adams's  Memoirs,  157. 

2  1  The  Life  of  Lord  Stratford  de  RedclifEe,  by  Stanley  Lane-Poole 
(1893),  308. 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    115 

more  without  success,  he  was  recalled  by  his  govern- 
ment, and  Sir  Stratford  Canning,  who  had  succeeded 
him  at  Washington,  was  transferred  to  St.  Petersburg. 
Within  three  weeks  after  his  first  interview  with  the 
Russian  plenipotentiaries  the  desired  treaty  was  signed. 
The  event  has  a  special  interest  for  Americans,  because 
it  was  this  treaty  which  fixed  the  land  boundary  of 
Alaska,  and  out  of  which  grew  the  controversy  with 
Canada,  settled  by  the  London  Boundary  Tribunal  of 
1903. 

Next  in  importance  to  a  good  standing  at  the  foreign 
of&ce  is  the  establishment  by  the  envoy  of  friendly 
social  relations  with  of&cial  and  private  circles.  Personal 
acquaintance  with  influential  people  in  governmental 
and  political  life  is  often  helpful  in  advancing  business 
of  the  legation,  and  in  euabhng  the  minister  to  ascer- 
tain and  communicate  to  the  home  government  the  true 
spirit  and  policy  of  the  nation.  None  of  our  American 
diplomats  have  understood  better  or  practiced  more 
assiduously  this  duty  than  FrankHn,  who  became  the 
favorite  guest  of  public  and  private  entertainments,  and 
was  by  no  means  neglectful  of  hospitality  on  his  part. 
I  do  not  go  to  the  length  of  Palmerston,  in  his  declara- 
tion that  dining  is  the  life  and  soul  of  diplomacy,  but 
it  plays  no  insignificant  part  in  the  career  of  the  suc- 
cessful minister.  It  is,  therefore,  apparent  that  the  estab- 
lishment which  an  envoy  maintains,  or  his  manner  of 
living,  is  an  important  matter  for  him. 

The  diplomatic  representatives  of  the  United  States 
are  forbidden  by  the  Printed  Instructions  from  publish- 
ing any  of  their  correspondence  with  the  foreign  office, 


116  THE   PRACTICE   OF   DIPLOMACY 

or  any  official  paper,  without  the  express  consent  of  the 
department ;  and  the  secretary  of  state  has  had  occa- 
sion to  severely  criticise  foreign  ministers  at  Washington 
for  making  public  their  correspondence  with  him  with- 
out the  authority  of  their  governments.  Every  govern- 
ment is  the  judge  of  the  propriety  of  publication  of  the 
correspondence  of  its  agents  with  a  foreign  government, 
but  such  publication,  especially  of  matters  relating  to 
pending  questions,  is  usually  not  made  except  by  mutual 
agreement  or  on  notice  to  the  other  power,  and  it  is 
improper  to  publish  a  note  or  dispatch  before  it  has 
been  received  by  the  other  party. 

It  is  the  custom  of  the  British  foreign  office  to  lay 
before  Parliament  the  diplomatic  correspondence  on  any 
particular  subject,  when  called  for  or  required  by  cir- 
cumstances. Such  is  also  the  custom  in  the  United  States, 
but  in  addition  to  this  there  is  annually  issued  one  or 
more  volumes,  containing  the  correspondence  exchanged 
with  the  legations  which  is  deemed  to  be  of  public  in- 
terest. This  annual  publication  constitutes  a  continuous 
chronicle  of  our  diplomatic  relations  so  far  as  they  may 
be  made  public,  and  is  a  valuable  addition  to  the  current 
history  of  the  times.  Care  is  exercised,  in  making  the 
compilation,  to  omit  any  dispatches  or  portions  thereof 
the  publication  of  which  might  be  objectionable,  and 
in  sending  their  dispatches  ministers  often  mark  such 
portions  as  confidential.  But  even  with  caution,  matter 
appears  sometimes  which  places  the  resident  minister 
in  very  embarrassing  relations  with  the  government  to 
which  he  is  accredited. 

A  noted  instance  is  that  of  Mr.  Sargent,  minister  to 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    117 

Germany,  who  wrote  a  dispatch  to  the  department  in 
1883,  on  the  subject  of  the  prohibition  of  the  importa- 
tion of  American  pork  into  Germany,  on  the  alleged 
ground  of  trichina  infection.  He  mentioned  the  public 
declaration  of  the  minister  of  the  interior  that  the  ordi- 
nance to  that  effect  would  soon  be  issued,  and  said  that 
"  the  pretense  of  sanitary  reasons  is  becoming  the  thin- 
nest veil  .  .  .  and  is  now  apparently  only  insisted  on 
as  an  excuse  to  the  United  States."  And  elsewhere  in 
the  dispatch  he  exposed  the  insincerity  of  the  govern- 
ment's published  motives,  closing  with  the  declaration 
that  "  we  cannot  submit  to  the  exclusion  of  our  products 
upon  false  pretenses — pretenses  so  obviously  false  as 
in  this  instance." 

The  dispatch  was  pubHshed  by  the  department  in  its 
commercial  series,  the  subject  being  one  of  deep  interest 
to  the  agricultural  people  of  the  United  States.  When 
its  pubhcation  reached  Germany,  Mr.  Sargent's  comment 
was  received  by  the  government  newspapers  with  a  storm 
of  indignation,  and  from  that  date  he  ceased  to  be  per- 
sona grata  in  official  circles.  Soon  thereafter  an  inci- 
dent occurred  which  added  fuel  to  the  flames.  Edward 
Lasker,  a  German  statesman,  member  of  the  Reichstag, 
died  in  the  United  States  in  1883,  having  during  his 
visit  been  received  by  Congress.  The  House  of  Repre- 
sentatives passed  a  resolution  of  sympathy  and  requested 
that  a  copy  be  transmitted  to  the  German  Reichstag. 
The  resolution  was  forwarded  by  the  secretary  of  state 
to  Mr.  Sargent  and  by  him  sent  to  Prince  Bismarck, 
chancellor  and  head  of  the  foreign  office.  Bismarck,  to 
whom  Lasker  had  been  an  active  antagonist,  dechned 


118  THE  PRACTICE  OF  DIPLOMACY 

to  transmit  the  resolution  to  the  Reichstag  because,  as 
he  said,  his  "  opinion  of  the  deceased's  politics  and  ser- 
vices differed  from  that  of  the  enlightened  House  of 
Representatives . ' ' 

The  official  press  opened  upon  Sargent,  as  he  reported, 
"with  forked  tongues  of  venom,  simultaneously  with 
the  announcement  of  the  fact  that  the  chancellor  had 
sent  back  the  Lasker  resolution,"  and  they  charged  him 
"  with  ignorance  of  diplomatic  usage."  The  semi-official 
press  expressed  wonder  that  he  "  did  not  vacate  his  place 
here  to  give  way  to  one  who  is  not  so  intimately  asso- 
ciated with  the  political  opponents  of  the  government." 
The  President  offered  to  transfer  him  to  St.  Petersburg, 
but  feeling  that  the  department  had  done  him  a  great 
injury  by  the  indiscreet  publication  of  his  dispatch,  he 
declined  the  post,  resigned,  and  retired  to  private  Hfe.^ 

In  view  of  inconveniences  sometimes  caused  by  the 
publication  of  the  diplomatic  volumes,  it  has  been  sug- 
gested that  it  would  be  better  to  omit  altogether  the 
annual  volume,  and  follow  the  British  practice  of  the 
occasional  publication  of  special  subjects  when  required. 
But  in  the  present  state  of  general  intelligence  among 
the  people,  it  is  not  necessary  to  have  many  state  se- 
crets, because,  as  has  been  said,  the  general  interests  of 
nations  thrive  best  in  the  daylight.  It  animates  public 
spirit  and  invigorates  a  sense  of  duty.  These  annual 
publications,  besides,  serve  a  useful  purpose  in  making 
accessible  a  continuous  history  of  our  diiDlomacy. 

Referring  to  the  practice  of  ministers  marking  their 
dispatches  confidential  or  transmitting  state  secrets  in 

1  MSS.  Department  of  State,  Germany,  1883-84. 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    119 

private  letters  to  the  secretary  of  foreign  affairs,  it  has 
been  related  of  a  celebrated  French  diplomatist  that  his 
papers  were  of  four  kinds:  First,  his  dispatches  to  the 
ministers  of  foreign  affairs,  which  might,  if  necessary, 
be  communicated  or  pubHshed,  showing  how  it  was 
desirable  that  matters  and  transactions  should  appear; 
second,  his  confidential  letters  to  the  minister,  showing 
how  he  wished  matters  to  appear  officially ;  third,  his 
letters  to  an  intimate  friend,  giving  an  unofficial  view 
of  affairs  which  he  wished  to  be  regarded  as  the  true 
one ;  and,  lastly,  his  diary,  giving  the  naked  facts  and 
exact  truth. 

American  diplomatic  officers  are  prohibited  by  law 
from  corresponding  with  any  newspaper  or  with  any  per- 
son other  than  the  proper  officers  of  the  United  States  in 
regard  to  the  public  affairs  of  any  foreign  government 
(R.  S.  sect.  1751),  a  prohibition  which  is  sometimes 
transgressed  to  the  discredit  of  the  representative.  Nor 
are  they  permitted  to  correspond  with  them  as  to 
matters  which  are  or  may  be  the  subject  of  official  cor- 
respondence with  the  government  to  which  they  are 
accredited.  They  are  forbidden  by  the  Printed  Instruc- 
tions to  participate  in  any  manner  in  the  political 
concerns  of  the  country  of  their  residence ;  they  are 
especially  enjoined  to  refrain  from  public  expression  of 
opinion  upon  local  politics,  and  from  making  reference 
to  political  issues  pending  in  the  United  States  and 
elsewhere ;  and  they  are  advised  not  to  make  public 
addresses,  unless  upon  exceptional  festal  occasions.^ 
These  official  prohibitions  and  injunctions  support  the 

'  Printed  Instructions,  26. 


120  THE  PRACTICE  OF  DIPLOMACY 

view  that  the  less  a  diplomatic  representative  speaks  in 
public,  the  better  for  his  own  reputation. 

This  is  illustrated  in  the  case  of  Mr.  Bayard,  ambas- 
sador to  Great  Britain,  one  of  our  most  experienced 
public  men,  long  a  senator,  and  for  four  years  secretary 
of  state.  He  was  called  to  account  for  two  public 
addresses  delivered  in  England  in  1895.  The  press 
reported  that  at  the  town  of  Boston,  in  an  after-din- 
ner speech,  he  declared  "  that  the  President  stood  in 
the  midst  of  a  strong,  self-confident,  and  oftentimes  vio- 
lent people ;  men  who  sought  to  have  their  own  way. 
It  took  a  real  man  to  govern  the  people  of  the  United 
States."  At  Edinburgh  he  delivered  a  written  address 
before  the  Philosophical  Institution,  in  the  course  of 
which,  referring  to  the  policy  of  protection  in  the 
United  States,  he  said :  "  it  has  done  more  to  corrupt 
public  life,  to  banish  men  of  independent  mind  and 
character  from  public  councils,  to  lower  the  tone  of 
national  representation  and  blunt  public  conscience  .  .  . 
than  any  other  single  cause.  ...  It  saps  the  popular 
conscience  by  schemes  of  corrupting  favor  and  largesse 
to  special  classes,  .  .  .  and  has  done  so  much  to  throw 
legislation  into  the  poHtical  market,  where  jobbers  and 
chaff erers  take  the  place  of  statesmen." 

The  House  of  Kepresentatives,  controlled  by  an  oppo- 
sition majority,  passed  a  resolution  calling  on  the  Pre- 
sident to  inform  the  house  concerning  the  correctness 
of  the  speeches  as  reported,  and  what  if  any  action  on 
them  had  been  taken  by  the  Department  of  State.  The 
President  in  reply  transmitted  copies  of  the  speeches  as 
communicated  by  Mr.  Bayard,  and  stated  that  no  action 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    121 

had  been  taken  on  them  by  the  department.  Thereupon 
resolutions  were  introduced  in  the  house,  the  first  con- 
demning Mr.  Bayard  for  violating  the  rule  of  the  de- 
partment, and  the  second  being  as  follows  :  — 

"  Besohedy  That  in  the  opinion  of  the  House  of 
Representatives  public  speeches  by  our  diplomatic  or 
considar  officers  abroad,  which  display  partisanship  or 
which  condemn  any  political  party  or  party  policy 
or  organization  of  citizens  of  the  United  States,  are  a 
dereliction  of  the  duty  of  such  officers,  impair  their 
usefulness  as  public  servants,  and  diminish  the  confi- 
dence which  they  should  always  command  at  home  and 
abroad." 

The  resolutions  awakened  a  warm  debate,  in  which 
Mr.  Bayard  was  defended  by  his  party  adherents ;  both 
resolutions  were  adopted,  the  second  by  an  overwhelm- 
ing majority  made  up  of  both  parties.  It  was  regarded 
as  a  correct  statement  of  the  duty  of  a  diplomatist.^ 

Mr.  Bayard,  in  making  the  addresses  for  which  he 
was  censured,  was  only  following  the  practice  observed 
by  many  of  his  predecessors  at  the  court  of  St.  James. 
The  same  language,  institutions,  and  history  make  it 
natural  that  American  representatives  to  Great  Britain 
should  participate  with  their  kinsmen  in  public  celebra- 
tions, and  their  addresses  have  usually  had  a  happy 
effect,  but  Mr.  Bayard's  experience  warns  them  that 
they  cannot  be  too  circumspect  in  their  utterances  on 
such  occasions. 

*  For  addresses,  see  H.  R.  Ex.  Doc.  152,  54th  Coug.,  1st  Sess.;  for 
debate  and  action  of  the  house,  Congressional  Record,  vol.  28,  part  3, 
2976  ;  part  4,  3034  ff. 


122  THE  PRACTICE  OF  DIPLOMACY 

Until  recent  years  it  was  not  usual  for  foreign  envoys 
at  Washington  to  make  public  addresses.  Of  late  it 
has  grown  quite  common  for  them  to  deliver  addresses 
before  our  educational  institutions,  scientific  bodies, 
and  other  non-political  assemblages.  Such  addresses 
are  highly  appreciated  by  our  people,  and  tend  to  the 
promotion  of  better  relations  with  the  countries  they 
represent. 

Oratory,  however,  has  not  been  regarded  as  an  indis- 
pensable requisite  to  a  successful  diplomatic  career. 
The  first  two  accredited  foreign  representatives  of  the 
United  States  were  Benjamin  Franklin  to  France  and 
John  Adams  to  England.  The  latter  was  a  famous 
orator,  the  former  seldom  spoke  in  public.  Adams  con- 
trasted their  services  in  Congress  as  follows :  "  I  was 
active  and  alert  in  every  branch  .  .  .  discussing  and 
arguing  on  every  question,  while  Franklin  was  seen 
from  day  to  day,  sitting  in  silence,  a  greater  part  of  the 
time  fast  asleep  in  his  chair."  Jefferson,  writing  of  the 
same  Congress,  said :  "  I  never  heard  Franklin  speak 
ten  minutes  at  a  time,  nor  to  essay  but  the  main  point." 
Franklin  confessed  :  "  I  was  but  a  bad  speaker ;  .  .  . 
yet  I  generally  carried  my  points."  Franklin  stands  out 
in  history  as  the  representative  American  diplomat,  while 
Adams  gained  little  credit  from  his  foreign  service. 

It  is  the  duty  of  a  foreign  minister  to  reside  at  the 
capital  of  the  country  to  which  he  is  accredited.  The 
secretary  of  state  has  in  more  than  one  instance  had 
occasion  to  bring  this  rule  to  the  attention  of  foreign 
diplomats  who  have  been  inclined  to  fix  their  residence 
at  New  York  or  some  other  city.    The  Printed  Instruc- 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    123 

tions  remind  American  ministers  of  this  rule,  but  do 
not  require  them  to  remain  continuously  at  the  seat  of 
government,  especially  when  the  heads  of  government 
absent  themselves.  During  such  interval  or  vacation,  it 
is  sufficient  if  the  minister  establishes  himself  at  some 
convenient  place  vrithin  the  country,  and  the  office  of 
the  legation  is  kept  open  for  business.  Under  such 
circumstances  a  minister  is  understood  to  be  at  his 
post.  A  century  and  more  ago  it  was  quite  the  practice 
in  Europe  for  the  diplomatic  corps  to  follow  the  court 
when  it  changed  its  residence  on  vacation  or  otherwise. 
Mr.  Jay,  when  minister  to  Madrid,  reported  to  the  Con- 
tinental Congress  that  his  expenses  were  much  increased 
from  his  duty  of  "  following  the  court."  * 

Envoys  abroad  should  not  fail  to  establish  and  culti- 
vate the  most  friendly  relations  with  their  colleagues  in 
the  diplomatic  body  accredited  to  the  same  government, 
but  the  policy  of  the  United  States  prevents  them  from 
taking  joint  action  in  questions  of  a  political  character. 
The  interests  of  the  United  States  may  require  its  repre- 
sentative, on  certain  occasions,  to  take  action  similar  to 
that  of  other  foreign  representatives  ;  but  in  such  case 
a  violation  of  the  rule  as  to  joint  action  is  avoided 
by  addressing  to  the  foreign  office  what  is  termed  an 
"identic  note,"  each  of  the  representatives  sending  a 
communication  signed  by  himself  only,  of  substantially 
the  same  character  as  that  of  his  colleagues.  An  excep- 
tion to  the  rule  against  joint  action  is  sometimes  made 
as  to  ministers  accredited  to  non-Christian  countries, 
such  as  China,  Persia,  and  others,  where  foreigners  are 

^  3  Secret  Journals  of  Continental  Congress,  128. 


124  THE  PRACTICE  OF  DIPLOMACY 

not  afforded  the  protection  of  established  and  uniform 
justice. 

The  converse  of  this  rule  is  also  observed  at  Wash- 
ington, where  the  joint  action  of  foreign  representatives 
is  generally  declined  at  the  Department  of  State.  The 
most  notable  instance  of  the  enforcement  of  this  rule 
was  the  attempt  of  the  British  and  French  ministers 
during  our  Civil  War  to  make  a  joint  representation 
respecting  it  to  Secretary  Seward,  which  he  firmly  de- 
clined.^ An  apparent  disregard  of  this  rule  occurred 
just  before  the  commencement  of  the  Spanish  war  in 
1898,  when  the  European  ambassadors  at  Washington 
were  received  by  the  President  at  the  White  House  to 
make  a  joint  representation  in  the  interest  of  peace. 
The  reason  given  for  this  action  was  that  it  afforded 
the  President  an  opportunity,  which  he  embraced,  to 
make  known  to  the  nations  represented  and  to  the  world 
the  motives  influencing  the  conduct  of  the  United 
States.  It  likewise  appears  that  in  1875  Secretary  Fish 
solicited  the  joint  intervention  of  the  European  powers 
with  Spain  respecting  Cuba. 

Two  centuries  ago  it  was  the  practice  of  nations  to 
make  use  of  Latin  in  diplomatic  correspondence,  and 
later  French  came  into  general  use,  but  during  the  pre- 
sent century  each  nation  has  adopted  its  own  language 
in  correspondence.  Hence,  American  representatives 
abroad  in  their  notes  to  the  foreign  office  always  use 
the  English  language.  In  1778,  when  Franklin  was 
accredited  as  minister  to  France,  Congress  resolved  that 

1  Seward  at  Washington,  1846-61,  by  Frederick  W.  Seward  (1891), 
581. 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    125 

"all  speeches  and  communications  may,  if  the  foreign 
ministers  choose  it,  be  in  the  language  of  their  respec- 
tive countries ;  and  all  replies  or  answers  shall  be  m 
the  language  of  the  United  States,'^  —  an  evasion  by 
the  rebellious  colonists  of  the  use  of  the  word  English. 
Some  exceptions  to  the  rule  as  to  the  language  exist,  as, 
for  instance,  in  Russia,  where  the  foreign  office,  in  its 
communications  to  the  diplomatic  body,  as  well  as  its 
representatives  abroad,  employs  the  French,  its  own 
language  being  understood  by  few  foreigners.  The 
same  practice  is  followed  in  some  Oriental  countries. 

In  fact,  up  to  a  late  date  in  the  nineteenth  century, 
many  of  the  governments  of  Europe,  for  convenience 
of  ready  communication,  used  the  French  language  in 
their  diplomatic  correspondence.  This  practice  was 
encouraged  by  French  diplomats.  Insistence  upon  the 
practice  in  the  case  of  Germany  elicited  from  Bismarck 
the  famous  remark  that  he  would  find  means  which 
would  make  a  dispatch  written  in  the  German  language 
intelligible  in  Paris. 

A  minister  is  often  placed  in  an  embarrassing  posi- 
tion in  revolutionary  countries  like  the  Latin  Americas 
by  sudden  and  violent  changes  of  government.  In  such 
cases  he  usually  reports  the  situation  to  his  own  govern- 
ment and  awaits  its  instructions  before  formal  recogni- 
tion of  the  new  order ;  but  meanwhile  he  is  often  under 
the  necessity  of  establishing  provisional  relations  with 
the  new  authorities.  Upon  the  death  of  the  sovereign 
or  the  advent  of  a  new  ruler,  in  the  European  monar- 
chies, a  new  letter  of  credence  is  sent  to  the  minister ; 
but  not  so  with  an  American  minister,  as  the  presiden- 


126  THE  PRACTICE  OF  DIPLOMACY 

tial  changes  do  not  affect  the  continuity  or  order  of 
government.^ 

Mr.  Denbj,  the  American  minister  to  China,  went  to 
Peking  in  1885  and  entered  on  the  duties  of  his  post ; 
but  owing  to  the  minority  of  the  emperor  he  was  not 
able  to  deHver  his  letter  of  credence  till  1891,  when  his 
majesty  assumed  the  government.  The  letter  which  he 
had  held  since  1885  was  then  deHvered.^ 

In  royal  countries  the  death  of  a  ruler  or  any  mem- 
ber of  the  royal  family  or  other  possible  heir  to  the 
throne,  or  the  birth  or  marriage  of  such  princes  or 
princesses,  is  made  the  subject  to  all  foreign  rulers  of 
what  are  termed  ceremonious  letters.  To  such  letters 
it  is  the  duty  of  the  President  of  the  United  States  to 
respond.  On  these  letters  ex-President  Harrison  has 
commented  as  follows :  "  It  seems  almost  incongruous 
to  notify  a  republican  government  Hke  ours  of  such 
an  event  [the  birth  of  a  prince  royal].  The  form  in 
use  for  an  answer  to  such  communications  was  possibly 
prepared  by  Secretary  Jefferson.  It  assures  the  happy 
parents  of  the  joy  felt  by  the  President  and  by  the 
people  of  the  United  States  over  the  happy  event.  The 
language  in  use  was  so  tropical  that  when  such  a  con- 
gratulatory letter  was  presented  for  his  signature  one 
of  our  Presidents  felt  compelled  to  use  the  blue  pencil 
with  vigor.  Perhaps,  if  we  were  to  notify  '  our  great 
and  good  friends,'  the  kings  and  queens  of  the  earth, 
of  the  birth  of  every  '  heir  possible '  to  the  presidency, 
they  would  break  off  the  correspondence."  ^ 

1  7  Opinions  of  Attorneys-General,  582. 

'  U.  S.  For.  Rel.  1891,  376. 

^  This  Country  of  Ours,  Harrison,  192. 


'  DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    127 

It  has  not  been  the  practice  of  the  government  of 
the  United  States  to  notify  the  changes  of  the  presi- 
dency to  other  governments.  As  to  this  practice  Secre- 
tary Seward  wrote :  "  We  receive  from  all  monarchical 
states  letters  announcing  the  births  and  deaths  of  per- 
sons connected  nearly  with  the  throne,  and  we  respond 
to  them  in  the  spirit  of  friendship  and  in  terms  of 
courtesy.  On  the  contrary,  on  our  part,  no  signal  inci- 
dent or  melancholy  casualties  affecting  the  Chief  Magis- 
trate or  other  functionaries  of  the  Republic  are  ever 
officially  announced  by  us  to  foreign  states.  While  we 
allow  the  foreign  states  the  unrestrained  indulgence 
of  their  peculiar  tastes,  we  carefully  practice  our  own. 
This  is  nothing  more  than  the  courtesy  of  private  life 
extended  into  the  intercourse  of  nations."  ^  At  the  time 
of  the  assassination  of  President  Lincoln  no  official 
announcement  of  the  tragic  event  was  sent  to  foreign 
governments,  but  no  similar  event  of  the  century 
attracted  such  universal  attention  from  all  classes  and 
races.  The  communications  of  condolence  from  the 
rulers  and  governing  bodies  of  all  nations,  as  well  as 
from  civic  organizations  and  the  masses  of  the  people, 
throughout  both  hemispheres,  were  collected  and  printed 
in  a  large  folio  volume,  and  form  a  curious  and  unique 
manifestation  of  sympathy.^ 

There  is  a  rule  in  some  countries  which  prohibits 
their  diplomatic  representatives  abroad  from  marrying 
foreign  wives  without  the  consent  of  the  sovereign. 

1  1  Wharton's  Digest,  632. 

*  This  volume  was  republished  as  Part  IV  to  U.  S.  Diplomatic  Cor- 
respondence, 1865. 


128  THE  PRACTICE   OF  DIPLOMACY 

The  German  minister  to  China  some  years  ago,  who 
had  had  a  long  and  highly  creditable  diplomatic  career, 
became  enamored  with  the  attractive  daughter  of  the 
American  minister  to  Korea,  and,  his  telegraphic  request 
for  the  permission  of  the  emperor  being  refused,  he 
married  the  young  lady  in  spite  of  it.  His  act  was  fol- 
lowed by  his  recall,  and  he  was  permanently  retired 
from  the  service.^  Other  German  diplomats  have  been 
more  fortunate  in  securing  their  emperor's  consent,  and 
have  profited  by  the  companionship  and  counsel  of 
American  consorts. 

I  refer  in  the  next  chapter  to  the  constitutional  pro- 
hibition which  does  not  allow  a  minister  of  the  United 
States  to  accept  an  office  from  a  foreign  government, 
but  this  does  not  prevent  him  from  acting  as  the  repre- 
sentative of  another  government  at  the  court  to  which 
he  is  accredited,  when  the  other  government  for  any 
reason  has  no  representative  there.  In  this  capacity  he 
can  not  only  hold  relations  with  the  foreign  office  in 
behalf  of  the  third  government,  but  can  extend  his 
protection  to  citizens  or  subjects  of  that  government 
resident  or  being  in  the  country.  He  cannot,  however, 
accept  the  trust  without  the  approval  of  his  own  gov- 
ernment and  the  consent  of  the  gfovernment  to  which 
he  is  accredited.  For  this  service  he  is  not  allowed  to 
receive  any  compensation. 

1  2  China  and  her  People,  by  Charles  Denby  (1906),  236.  Minister 
Denby  writes  of  his  colleague,  Herr  von  Brandt  :  "  He  surrendered  the 
first  diplomatic  position  in  the  Far  East,  married  his  sweetheart  and 
retired  to  lead  a  scholarly  life  at  Wiesbaden.  Here  is  a  lover's  romance, 
crowned  with  magnificent  renunciation  of  place  and  power,  found  in  the 
musty  records  of  diplomacy." 


DUTIES  OF  DIPLOMAT  TO  FOREIGN  GOVERNMENT    129 

One  of  the  most  noted  cases  of  this  character  was  the 
service  which  the  American  minister  to  France,  Mr.  E. 
B.  Washburne,  rendered  the  German  government  and 
its  subjects  in  Paris  as  its  representative  during  the 
Franco-German  war  of  1870-71.^ 

The  French  ambassador  to  the  United  States  acted 
as  the  Spanish  representative  during  the  war  of  1898, 
and  in  that  capacity  signed  with  the  secretary  of  state 
the  protocol  arranging  for  the  termination  of  hostihties 
and  the  peace  negotiations. 

^  As  to  Mr.  Wasliburoe's  services,  see  U.  S.  Foreign  Relations,  1870 
and  1871,  France.  See  also  1  Recollections  of  a  Minister  to  France,  by 
E.  B.  Washburne,  1887,  chaps.  2  and  3. 


CHAPTER  VII 

COURT   DRESS,    DECORATIONS,    AND    PRESENTS 

Connected  with  the  social  duties  of  envoys  of  the 
United  States  is  the  matter  of  diplomatic  dress  or  court 
costume,  which  has  been  a  vexed  question  in  our  diplo- 
matic history,  and  has  been  a  subject  of  official  corre- 
spondence and  Congressional  discussion  far  beyond  its 
intrinsic  importance. 

In  the  earher  years  of  the  service  our  representatives 
appear  to  have  been  left  free  to  wear  such  court  dress 
as  seemed  to  them  most  fitting.  The  plain  Quaker  cos- 
tume in  which  Franklin  is  represented,  and  which  so 
attracted  the  Parisians,  and  the  "spotted  Manchester 
velvet  suit "  which  he  is  said  to  have  donned  on  several 
important  occasions  are  often  mentioned  in  accounts  of 
his  service.  The  Puritan  John  Adams,  when  he  arrived 
in  Paris  to  join  our  Peace  Commissioners,  is  related  to 
have  first  visited  the  tailor  and  wig-maker  before  he 
called  upon  his  colleague,  Dr.  Franklin.  And  yet  Mr. 
Adams  found  these  exactions  of  dress  very  repugnant. 
In  an  official  communication  to  Secretary  Jay,  in  giving 
an  account  of  the  preparations  for  his  mission  to  Great 
Britain  in  1785,  he  reports  that  he  was  informed  that 
he  must  make  London  in  time  for  the  king's  birthday ; 
and  to  that  end  he  must  carry  over  from  Paris  "  a  fine 
new  coat,  ready  made,  for  that  it  was  a  rule  of  etiquette 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS     131 

there  for  everybody  who  went  to  court  to  have  new 
clothes  and  very  rich  ones,  and  that  my  family  must  be 
introduced  to  the  Queen.  ...  I  hope,  sir,  you  will  not 
think  this  an  immaterial  or  a  trifling  matter,  when  you 
consider  that  the  simple  circumstances  of  presenting  a 
family  at  court  will  make  a  difference  of  several  hun- 
dred pounds  sterling  in  my  inevitable  expenses."  ^  And 
in  reporting  in  detail  his  presentation,  he  adds  this 
comment :  "  It  is  thus  the  essence  of  things  is  lost  in 
ceremony  in  every  country  of  Europe." 

The  first  authorized  use  of  a  uniform  seems  to  have 
been  upon  the  occasion  of  the  peace  negotiations  follow- 
ing the  second  war  with  Great  Britain.  The  "mill- 
boy  of  the  slashes,"  Henry  Clay,  and  his  four  colleagues 
appeared  at  the  Conference  at  Ghent  in  1814  in  a 
costume  which  is  described  as  follows:  A  blue  coat, 
lined  with  silk,  straight  standing  cape,  embroidered  with 
gold,  single-breasted,  straight  or  round  button-holes 
slightly  embroidered.  Buttons  with  the  artillerist's  eagle 
stamped  upon  them,  i.  e.  an  eagle  flying,  with  a  wreath  in 
its  mouth,  grasping  lightning  in  one  of  its  talons.  Cuffs 
embroidered  in  the  manner  of  the  cape ;  white  cassimere 
breeches,  gold  knee  buckles ;  white  silk  stockings ;  and 
gold  or  silver  shoe  buckles.  A  three-cornered  chapeau 
de  bras,  not  so  large  as  those  used  by  the  French,  nor 
so  small  as  those  of  the  English.  A  black  cockade  with 
an  eagle  attached.    Sword,  etc.,  corresponding. 

By  a  circular  issued  by  the  Department  of  State  in 
1817  this  uniform  was  adopted  for  diplomatic  ministers. 
The  secretaries  of  legation  were  to  wear  the  same  cos- 

1  8  John  Adams's  Works,  250. 


132  THE  PRACTICE  OF  DIPLOMACY 

tume,  with  the  exception  that  their  coats  were  to  have 
less  embroidery  than  those  of  the  ministers. 

In  1823  the  Department  of  State,  in  order  to  secure 
uniformity,  had  prepared  an  engraved  design  of  the  cos- 
tume to  be  worn  by  the  ministers  of  the  United  States  at 
foreign  courts,  on  occasions  when  full  dress  was  required. 
The  instructions  which  accompanied  this  engraved  de- 
sign say  :  "  In  the  monarchical  governments  of  Europe, 
a  minister  of  the  United  States  is  compelled  to  conform 
to  the  established  usages  of  appearing  in  the  presence 
of  the  sovereign  in  a  court  dress.  He  cannot,  indeed, 
deliver  his  credential  letter  without  it,  and  this  uniform 
was  adopted  for  the  convenience  of  using  the  same  dress 
upon  all  necessary  occasions,  and  at  every  court." 

At  the  commencement  of  the  administration  of  Pre- 
sident Jackson  a  further  circular  on  the  subject  was 
issued  to  the  diplomatic  body  of  the  United  States.  It 
does  not  appear  whether  or  not  this  was  occasioned  by 
some  remissness  in  the  observance  of  the  previous  in- 
structions, or  the  democratic  spirit  of  simplicity  of  "  Old 
Hickory  ;"  at  any  rate,  the  uniform  prescribed  was  much 
less  showy  than  that  fixed  by  the  circular  of  1817.  The 
new  circular  stated  that  "the  President  has  thought 
proper  to  adopt  the  following  as  the  dress  to  be  used  by 
the  diplomatic  agents  of  the  United  States  upon  all  such 
occasions  [when  a  court  dress  is  required],  being  recom- 
mended as  well  by  its  comparative  cheapness  as  by  its 
adaptation  to  the  simphcity  of  our  institutions,  namely : 
a  black  coat,  with  a  gold  star  on  each  side  of  the  col- 
lar near  its  termination ;  the  under  clothes  to  be  black 
or  white,  at  the  option  of  the  wearer ;  a  three-cornered 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    133 

chapeau  de  bras,  with  a  white  cockade  and  a  gold  eagle ; 
and  a  steel  mounted  sword  with  white  scabbard."  It  is 
understood,  however,  that  the  use  of  this  particular  dress 
was  not  prescribed  by  the  President.  It  was  "  barely  sug- 
gested by  his  direction,  as  an  appropriate  and  convenient 
uniform  dress  for  the  use  of  the  diplomatic  agents  of  the 
United  States  residing  near  foreign  governments." 

No  further  action  appears  to  have  been  taken  in  re- 
gard to  the  costume  till  the  administration  of  President 
Pierce,  whose  secretary  of  state,  Mr.  Marcy,  prided  him- 
self on  his  attachment  to  repubHcan  simplicity.  In  1853 
he  issued  a  circular  which  became  famous  in  our  diplo- 
matic annals.    The  body  of  the  circular  is  as  follows  :  — 

"In  performing  the  ceremonies  observed  upon  the 
occasion  of  his  reception,  the  representative  of  the 
United  States  will  conform,  as  far  as  is  consistent  with  a 
just  sense  of  his  devotion  to  republican  institutions,  to 
the  customs  of  the  country  wherein  he  is  to  reside,  and 
with  the  rules  prescribed  for  representatives  of  his  rank ; 
but  the  Department  would  encourage  as  far  as  practica- 
ble, without  impairing  his  usefulness  to  his  country,  his 
appearance  at  court  in  the  simple  dress  of  an  American 
citizen.  Should  there  be  cases  wherein  this  cannot  be 
done,  owing  to  the  character  of  the  foreign  government, 
without  detriment  to  the  public  interest,  the  nearest 
approach  to  it  compatible  with  the  due  performance  of 
his  duties  is  earnestly  recommended.  The  simplicity  of 
our  usages,  and  the  tone  of  feeling  among  our  people,  is 
much  more  in  accordance  with  the  example  of  our  first 
and  most  distinguished  representative  at  a  royal  court 
than  the  practice  which  has  since  prevailed.    It  is  to  be 


134  THE  PRACTICE  OF  DIPLOMACY 

regretted  that  there  was  ever  any  departure  in  this 
respect  from  the  example  of  Dr.  Franklin.  History  has 
recorded  and  commended  this  example,  so  congenial  to 
the  spirit  of  our  political  institutions.  The  Department 
is  desirous  of  removing  all  obstacles  to  a  return  to  the 
simple  and  unostentatious  course  which  was  deemed  so 
proper,  and  was  so  much  approved  in  the  earliest  days 
of  the  republic.  It  is  our  purpose  to  cultivate  the  most 
amicable  relations  with  all  countries,  and  this  we  believe 
can  be  effectually  done  without  requiring  our  diplomatic 
agents  to  depart  in  this  respect  from  what  is  suited  to 
the  general  sentiments  of  our  fellow  citizens  at  home. 
All  instructions  in  regard  to  what  is  called  diplomatic 
uniform,  or  court  dress,  being  withdrawn,  each  of  our 
representatives  in  other  countries  will  be  left  to  regulate 
this  matter  according  to  his  own  sense  of  propriety,  and 
with  a  due  respect  to  the  views  of  his  government  as 
herein  expressed." 

This  circular,  when  it  reached  the  legations  in  Europe 
and  was  made  public,  created  a  great  flutter  of  excite- 
ment in  court  circles,  and  for  a  long  time  was  a  topic 
of  social  gossip  and  newspaper  comment,  the  general 
current  of  which  was  in  ridicule  of  the  United  States. 
It  was  likewise  made  the  subject  of  an  inquiry  by  Con- 
gress, and  full  details  of  the  manner  of  its  reception  in 
Europe  were  communicated  to  that  body  by  the  secre- 
tary of  state.^  In  no  court  was  more  serious  objection 
made  to  it  than  in  London.    The  tribulation  it  occa- 

1  For  department  circulars  and  correspondence  respecting  diplomatic 
uniform,  see  S.  Ex.  Doc.  31,  36th  Cong.,  1st  Sess.,  and  S.  Ex.  Doc.  68, 
40th  Cong.,  2d  Sess. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS     135 

sioned  Mr.  Buchanan,  then  our  minister  at  St.  James, 
has  become  a  matter  of  history.  He  finally  solved  the 
grave  question  by  budding  a  black-hilted  sword  on  his 
plain  dress  suit.  At  Paris  it  appears  to  have  given  more 
domestic  trouble  to  the  legation  than  it  caused  at  the 
court.  When  the  circular  was  received,  the  legation  w^as 
in  charge  of  the  secretary,  Mr.  Sanford,  who  seems  to 
have  found  little  difficulty  in  securing  the  consent  of 
Louis  Napoleon's  master  of  ceremonies  for  his  appear- 
ance at  court  in  an  ordinary  dress  suit.  But  when  Mr. 
Mason,  a  new  minister,  arrived,  he  reported  to  the 
department  that  he  was  satisfied,  on  inquiry,  that  his 
appearance  on  state  occasions  would  be  more  acceptable 
in  uniform,  and  his  action  in  using  one  was  approved 
by  Secretary  Marcy;  whereupon  Mr.  Sanford  resigned 
in  high  temper. 

At  Berlin,  Vienna,  Stockholm,  and  other  capitals,  the 
ministers  were  given  to  understand  that  a  court  dress 
would  be  required,  our  minister  at  Stockholm  reporting 
that  his  "  appearance  at  court  in  plain  clothes  would 
have  been  likely  to  be  regarded  by  the  Swedish  govern- 
ment in  the  light  of  a  spirit  of  a  republican  propa- 
gandism."  Some  of  the  courts  of  the  smaller  countries, 
however,  showed  a  much  more  conciliatory  spirit.  The 
minister  of  foreign  affairs  at  Turin  "  very  politely  ex- 
pressed his  acquiescence  in  the  good  sense  and  propriety 
of  the  instructions,  and  stated  it  to  be  his  belief  that 
there  would  be  no  difficulty  on  that  score  at  court." 
The  minister  at  Lisbon  informed  the  secretary  for  for- 
eign affairs  that  he  proposed  to  wear  on  official  occa- 
sions an  ordinary  evening  suit,  "  with  a  simple  American 


136  THE  PRACTICE  OF  DIPLOMACY 

button  indicating  my  representative  capacity;"  and  the 
secretary  replied  that  in  view  of  the  instructions  of  his 
government  on  the  subject,  he  was  satisfied  there  was 
no  want  of  respect  meant,  and  that  he  did  not  doubt 
that  what  he  proposed  to  wear  would  be  perfectly  ac- 
ceptable to  his  majesty. 

Thus  the  matter  rested,  each  minister  being  left  to 
carry  out  the  spirit  of  Secretary  Marcy's  circular  in  the 
manner  best  suited  to  satisfy  the  sentiment  of  the  court 
and  his  own  tastes,  until  1867,  when  Congress  enacted 
a  law  prohibiting  officials  in  the  diplomatic  service  of 
the  United  States  from  wearing  any  uniform  or  official 
costume  not  previously  authorized  by  Congress.  Another 
statute  modified  the  prohibition  to  the  extent  of  author- 
izing all  officers  who  had  served  during  the  rebelHon 
as  volunteers  in  the  army  of  the  United  States  to  bear 
the  official  title,  and,  upon  occasions  of  ceremony,  to 
wear  the  uniform  of  their  rank  when  discharged.^  Under 
this  provision  ex-officers  of  the  Union  army  who  have 
been  appointed  to  the  diplomatic  service  have,  where 
the  place  and  occasion  warranted  it,  appeared  in  their 
military  uniform  at  state  ceremonies.  Some  ministers, 
however,  have  made  themselves  ridiculous  by  securing 
an  appointment  in  the  militia  service  of  the  United 
States  and  making  use  of  that  uniform.  A  story  is  told 
of  one  of  our  representatives  at  a  European  court  who 
appeared  at  the  palace  in  the  garb  of  captain  of  a  city 
cavalry  troop,  a  post  he  had  held  at  home;  which  led  the 
monarchical  diplomats,  attracted  by  his  metal  helmet, 

1  Revised  Statutes  of  the  United  States,  1878,  sects.  1688  and 
1226. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS     137 

quizzically  to  ask  if  he  belonged  to  a  fire  company  in 
America. 

The  Printed  Instructions  of  the  Department  of  State 
interpret  the  prohibitory  law  cited  to  permit  diplomatic 
officers  to  wear  the  dress  which  local  court  usage  pre- 
scribes as  requisite  upon  occasions  of  ceremony.  Under 
this  interpretation,  the  members  of  the  United  States 
embassy  in  London,  for  instance,  comply  with  the  re- 
quirements of  a  court  dress  by  appearing  on  state  occa- 
sions in  knee  breeches,  with  gilt  buckles  on  their  shoes, 
and  in  other  respects  in  ordinary  evening  dress.  At  St. 
Petersburg  the  American  ambassador  is  received  at  the 
imperial  palace  entertainments  in  what  Secretary  Marcy 
termed  "the  simple  dress  of  an  American  citizen,"  but 
at  the  ceremony  of  the  Czar's  coronation  no  one  was 
admitted  without  a  uniform  or  court  dress,  and  the 
members  of  the  United  States  legation  complied  with 
this  requirement.  A  similar  practice  prevails  at  some 
other  courts  in  Europe. 

Secretary  Bayard,  in  commenting  approvingly  upon 
the  law  prohibiting  the  use  of  uniform  for  diplomats 
in  an  instruction  to  the  minister  to  Spain,  wrote:  "I 
have  been  told  of  a  pertinent  illustration  of  this  in  Spain, 
some  years  ago,  on  the  occasion  of  the  first  official 
reception  of  the  late  King.  All  the  dignitaries  and  officers 
of  the  realm,  to  the  number  of  some  three  thousand, 
were  in  attendance,  and  foreign  representatives  likewise 
assisted.  Uniform  being  de  rigueur,  every  one  wore 
that  of  the  highest  official  or  titular  rank  to  which  he 
was  entitled.  In  the  whole  assemblage  four  men  ap- 
peared in  evening  dress  —  the  president  of  the  Senate, 


138  THE  PRACTICE   OF  DIPLOMACY 

the  president  of  the  Chamber  of  Deputies,  and  the  min- 
ister and  secretary  of  legation  of  the  United  States. 
They  were  indeed  conspicuous,  but  necessarily  so.  The 
Spanish  legislative  body  wears  as  such  no  uniform. 
Either  of  the  presiding  ofl&cers  might  have  worn,  as  a 
private  individual,  any  one  of  the  uniforms  belonging  to 
the  rank  held  in  other  official  stations,  as  ambassador, 
privy  councillor,  or  grand  cross ;  but  such  uniform  would 
have  been  beneath  the  dignity  of  the  representative 
function  with  which  they  stood  invested. 

"  Upon  reflection,  and  in  the  light  of  this  example,  it 
may  be  questioned  whether  the  representative  quality  of 
an  envoy,  the  highest  known  in  the  coequal  intercourse 
of  nations,  is  not  rather  diminished  than  enhanced  by 
wearing,  as  is  done  in  some  cases  under  statutory  au- 
thority, the  uniform  of  past  or  present  military  rank."  ^ 

Secretary  Marcy,  it  has  been  seen,  cited  the  dress  of 
Dr.  Frankhn  as  commended  by  our  history  and  proper 
for  imitation  as  a  court  costume.  It  is  well  known  what 
was  his  ordinary  dress.  It  is  described  by  a  French 
writer  of  the  period  of  his  residence  as  American  min- 
ister in  Paris  as  follows :  "  The  minister  was  usually 
dressed  in  a  coat  of  chestnut-colored  cloth,  without  any 
embroidery.  He  wore  his  hair  without  dressing  it,  used 
large  spectacles,  and  carried  in  his  hand  a  white  staff  of 
crab-apple  stock."  The  accuracy  of  this  description  is 
confirmed  by  other  contemporaneous  authorities. 

But  what  was  worn  by  him  at  court  is  not  so  definitely 
known.  A  seemingly  authentic  statement  is  that,  on  the 
ceremony  of  signing  the  treaty  of  alliance  with  France 

1  1  Wharton's  Digest,  747. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS     139 

of  1778,  he  donned  "  the  suit  of  spotted  Manchester  vel- 
vet" which  he  wore  at  the  privy  council  in  London, 
when  he  was  excoriated  by  the  attorney-general,  but 
it  is  not  certain  that  he  ever  wore  it  again.  Weems,  in 
his  biography  of  Franklin,  recites  this  incident :  — 

"When  Dr.  Franklin  was  received  at  the  French 
court  as  American  minister,  he  felt  some  scruples  of 
conscience  in  complying  with  t\iQiY  fashion  as  to  dress. 
He  hoped,  he  said  to  the  minister  [of  foreign  affairs], 
that,  as  he  was  a  plain  man  and  represented  a  plain  re- 
publican people,  the  King  would  indulge  his  desire  to 
appear  at  court  in  his  usual  dress.  Independent  of  this, 
the  season  of  the  year,  he  said,  rendered  the  change  from 
warm  stockings  to  fine  silk  ones  somewhat  dangerous. 

"  The  French  minister  made  him  a  bow  but  said  that 
the  fashion  was  too  sacred  a  thing  for  him  to  meddle 
with,  but  he  would  do  himself  the  honor  to  mention  it 
to  His  Majesty.  The  King  smiled  and  returned  word 
that  Dr.  Franklin  was  welcome  to  appear  at  court  in 
any  dress  he  pleased.''^ 

This  statement  might  be  accepted  as  conclusive  as  to 
the  character  of  the  court  costume  of  our  great  diplomat, 
but  for  the  fact  that  since  his  story  of  George  Washing- 
ton and  his  hatchet  has  been  discredited,  this  biographer 
is  not  regarded  as  high  authority  on  anecdotes.  Dr.  Ed- 
ward Everett  Hale,  who  has  written  the  most  exhaustive 
work  on  Franklin's  residence  in  Paris,  is  not  incHned  to 
accept  Secretary  Marcy's  view  of  his  court  dress.  In 
confirmation  of  his  opinion  that  the  Doctor  observed 
the  usual  custom  of  the  court  as  to  dress,  he  cites  the 

1  Weems's  Life  of  Franklin,  212. 


140  THE  PRACTICE  OF  DIPLOMACY 

fact  that  on  the  marriage  of  a  young  lady  friend  of  his 
to  his  nephew,  he  caused  to  be  painted,  as  his  wedding 
present  to  the  bride,  a  life-size  portrait  of  himself,  still 
extant,  in  which  he  appears  in  a  full  dress  of  blue  silk, 
fully  embroidered  with  gold,  and  wearing  a  wig. 

In  his  audience  of  the  king,  after  signing  the  trea- 
ties of  1778,  Parton  describes  Franklin  as  dressed  "  in 
a  suit  of  plain  black  velvet,  with  the  usual  snowy  ruf- 
fles at  wrist  and  bosom,  white  silk  stockings  and  silver 
buckles,"  but  without  the  usual  chapeau  and  sword. 
He  went  without  a  wig,  it  is  said,  because  the  one  made 
by  the  perruquier  did  not  fit  his  large  head.^ 

Mr.  Dallas,  who  succeeded  Mr.  Buchanan  at  London, 
had  much  trouble  in  meeting  the  requirements  of  the 
court  in  respect  of  dress.  At  one  of  the  levees  at  St. 
James,  he  was  accompanied  by  a  countryman,  an  officer 
of  the  West  Point  Military  Academy,  who  was  in  uni- 
form; but  because  he  did  not  wear  a  sword,  he  was 
refused  presentation ;  whereupon  the  minister  and  suite 
withdrew  from  the  palace  without  appearing  in  the  royal 
presence.^ 

Many  American  representatives  abroad  have  strongly 
advocated  the  adoption  by  the  government  of  a  diplo- 
matic uniform,  but  the  spirit  of  Secretary  Marcy's  cir- 
cular has  the  approval  of  the  country,  as  evidenced  by 
the  legislation  of  Congress.  One  of  the  most  experi- 
enced of  our  diplomatists,  at  the  close  of  a  long  public 
life,  left  on  record  this  testimony :  "  Truth  compels  me 
to  add  that,  having  myself  never  worn  anything  save 

1  2  Paiton's  Life  of  Franklin,  311. 

2  1  Dallas's  Letters  from  Loudon,  71;  2  ib.  38. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS      141 

plain  evening  dress  at  any  court  to  which  I  have  been 
accredited,  or  at  any  function  which  I  have  attended,  I 
have  never  been  able  to  discover  the  slightest  disadvan- 
tage to  my  country  or  myself  from  that  fact."  ^ 

Akin  to  the  topic  just  discussed  is  the  practice  in 
royal  governments  of  making  presents  to  and  conferring 
orders  and  decorations  upon  foreign  diplomatic  repre- 
sentatives on  special  occasions,  such  as  at  the  conclusion 
of  treaties  or  at  the  termination  of  their  missions.  The 
practice,  a  century  and  more  ago,  was  carried  to  extrav- 
agant hmits,  when  large  sums  of  money,  valuable 
presents,  and  distinguished  orders  were  bestowed  upon 
ambassadors  and  ministers.  Lord  Castlereagh,  English , 
ambassador  at  the  Vienna  Congress  and  at  Paris,  at  the 
close  of  the  Napoleonic  wars,  received  twenty-four  snuff- 
boxes, each  worth  one  thousand  pounds  sterhng,  besides , 
other  articles  equally  costly.  Count  Romanzoff,  the  chan- 
cellor of  Russia,  was  enabled,  from  the  presents  of  this 
kind  which  he  received,  to  establish  a  large  fund,  the 
income  of  which  he  dedicated  to  soldiers'  pensions.  The 
custom  grew  to  such  evil  proportions  that  it  has  been 
greatly  diminished  and  modified  in  recent  years. 

The  existing  practice  was  recognized  in  a  modest  way 
by  the  government  of  the  United  States  at  the  begin- 
ning of  its  existence,  but  was  followed  for  a  brief  period 
only.  Mr.  Jefferson,  who  had  just  returned  from  the 
mission  to  France,  entered  on  his  duties  as  secretary  of 
state  March  21,  1790,  The  next  month  he  addressed  a 
letter  to  the  Marquis  de  la  Luzerne,  who  had  terminated 
his  mission  as  French  minister  and  returned  to  Paris 

1  2  Autobiography  of  A.  D.  White  (1905),  371. 


142  THE  PRACTICE  OF  DIPLOMACY 

two  years  before,  conveying  to  him  the  assurance  of 
the  high  appreciation  of  the  President  for  his  useful 
services  during  his  mission,  and  informing  him  that  as 
soon  as  they  could  be  prepared,  a  gold  medal  and  chain 
would  be  sent  to  him  as  a  token  of  the  high  esteem  of 
the  people  and  government  of  the  United  States. 

On  the  same  date  Secretary  Jefferson  instructed  Mr. 
Short,  the  American  representative  in  Paris,  to  have  the 
medal  and  chain  for  the  marquis  prepared  and  delivered 
to  him.  On  one  side  was  to  be  the  coat  of  arms  of  the 
United  States;  and  he  suggested  as  a  design  for  the 
reverse,  "a  Columbia  (a  fine  female  figure)  delivering 
the  emblems  of  peace  to  a  Mercury,  with  a  legend 
*  Peace  and  Commerce,'  circumscribed  with  the  date  of 
our  republic."  In  a  later  letter  the  secretary  directed 
Mr.  Short  to  have  made  and  attached  to  the  gold  medal 
"a  chain  of  three  hundred  and  sixty-five  links,  each 
link  containing  gold  to  the  value  of  two  dollars  and  a 
half.  The  whole  will  make  a  present  of  little  more  than 
a  thousand  dollars.  .  .  .  Say  nothing  to  anybody  of 
the  value  of  the  present,  because  that  will  not  always 
be  the  same,  in  all  cases." 

A  similar  present  was  prepared  and  sent  to  Mr. 
van  Berckel,  the  first  minister  from  the  Netherlands, 
although  he  also  had  closed  his  mission  two  years  pre- 
viously. The  next  to  be  favored  was  Count  de  Moustier, 
minister  from  France,  successor  of  Luzerne.  We  shall 
see  in  a  later  chapter  that  this  diplomat  so  conducted 
himself  as  to  lead  our  government  to  ask  for  his  recall, 
and  he  had  gone  home  nominally  on  leave.  Nevertheless, 
upon  receiving  notice  from  him  that  he  had  been  given 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    143 

another  appointment,  Secretary  Jefferson  sent  him  quite 
an  effusive  letter  of  regret,  and  caused  the  gold  medal 
and  chain  to  be  delivered  to  him.  The  last  foreign 
minister  to  receive  this  present  was  Colonel  Ternant,  of 
France,  in  1793. 

Attached  to  the  copy  of  the  secretary's  letter  to  Ter- 
nant, in  the  archives  of  the  department,  is  the  following : 
"  Notes  on  the  subject  of  the  present.  It  was  proposed 
that  the  Medal  should  always  contain  150  dollars  worth 
of  Gold;  it  was  presumed  the  Gentlemen  would  always 
keep  this. 

"  The  chain  was  to  contain  365  links  always,  but 
these  to  be  proportioned  in  value  to  the  time  the  person 
had  been  here,  making  each  link  worth  3  dimes  for 
every  year's  residence.  No  expense  to  be  bestowed  on 
the  making,  because  it  was  expected  they  would  turn 
the  Chain  into  money."  ^ 

It  does  not  appear  in  the  official  records  why  this 
practice  was  discontinued,  but  doubtless  its  inconsis- 
tency early  became  apparent  to  a  government  which  did 
not  allow  its  own  diplomatic  representatives  to  receive 
similar  presents  from  foreign  governments.    When  the 

1  3  Writings  of  Jefferson,  edited  by  H.  A.  Washington  (1853),  140, 
142,  170,  20G  ;  MSS.  Department  of  State,  France. 
The  "  Notes  "  above  quoted  contain  also  this  table  :  — 

Luzerne's  chain   for  8\  years'  residence  at   2^  D.  a  link 

with  the  Medal  worth 1062^  D. 

"Van   Berckel's   chain  for  5  years'  residence   at   1^   D.   a 

link  with  the  Medal  worth 697    D. 

De  Moustier's  chain  for  3  years'  residence  at  9  dimes  a  link 

with  the  Medal  worth 478^  D. 

Ternant's  chain  for  1|  (say  2)  years'  residence  at  6  dimes  a 

link  with  the  Medal  worth 369    D. 


144  THE  PRACTICE  OF  DIPLOMACY 

Federal  Constitution  was  framed,  a  clause  was  inserted 
as  follows :  — 

"  No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  or 
trust  under  them,  shall,  without  the  consent  of  Congress, 
accept  of  any  presents,  emolument,  office,  or  title,  of 
any  kind  whatever,  from  any  king,  prince,  or  foreign 
state." ' 

An  examination  of  the  proceedings  of  the  conven- 
tion shows  that  this  was  one  of  the  very  few  provisions 
of  the  Constitution  that  was  adopted  without  opposition, 
its  eminent  appropriateness  for  a  democratic  govern- 
ment being  recognized  by  the  fathers  of  the  repub- 
lic. Mr.  C.  C.  Pinckney,  who  introduced  it,  said  its 
purpose  was  to  preserve  "  our  foreign  ministers  and 
other  officers  of  the  United  States  independent  of  exter- 
nal influences."^  Its  adoption  caused  the  practice  to 
be  discontinued  of  presenting  a  gold  medal  and  chain 
to  departing  foreign  ministers. 

The  first  case  which  was  brought  before  Congress 
under  this  provision  was  one  of  peculiar  interest.  Thomas 
Pinckney,  of  South  Carolina,  who  had  served  with  great 
gallantry  throughout  the  Revolutionary  War  and  was 
desperately  wounded,  after  having  been  governor  of  his 
State  was  appointed  minister  to  Great  Britain.  From 
that  post  he  was  transferred  to  Madrid  and  successfully 
negotiated  the  treaty  with  Spain  of  1795,  which  contin- 
ued in  force  without  change  for  more  than  a  century. 

*  Article  i,  sect.  9,  clause  8. 

^  3  Documentary  History  of  the  Constitution  of  the  United  States, 
Washington,  Department  of  State  (1900),  600. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    145 

On  his  return  home  he  was  elected  to  the  Fifth  Con- 
gress.   While  a  member  of  that  body  he  addressed  a 
letter  to  the  Speaker  of  the  House,  in  which  he  stated 
that  on  taking  leave  of  the  court  in  London  and  on  con- 
cluding the  treaty  with  Spain,  he  was  informed  that  the  \ 
presents  usual  on  such  occasions  would  be  prepared  for 
him,  and  that  he  had  replied  that  he  could  not  accept    I 
them  without  the  consent  of  Congress,  and  that  in  due    ' 
time  he  would  apply  for  that  consent ;  and  he,  therefore, 
asked  for  the  determination  of  Congress. 

The  subject  was  made  the  special  order  of  the  day 
for  a  date  five  weeks  later,  when  it  was  taken  up  and 
debated  at  great  length.  Those  who  opposed  giving  the 
consent  of  Congress  contended  that  it  was  unrepublican  -  j 
to  receive  presents  and  decorations  from  kings,  that 
it  might  tend  to  corruption,  and  that  it  would  require 
reciprocal  presents  by  the  United  States  to  foreign  min- 
isters in  Washington.  The  friends  of  the  measure  ridi- 
culed the  suggestion  that  it  would  establish  a  dangerous 
precedent;  and  claimed  that  as  General  Pinckney  had 
negotiated  a  useful  and  popular  treaty,  and  had  dis- 
charged his  duties  abroad  with  credit,  he  should  be 
permitted  to  receive  the  testimonials  of  respect  tendered 
him  by  the  foreign  sovereigns. 

The  opponents  admitted  that  no  stronger  case  than 
the  present  one  could  arise  for  the  favorable  action  of 
Congress,  as  General  Pinckney 's  services  to  his  country 
in  the  war  and  abroad  had  been  of  the  most  distinguished 
character,  and  he  was  then  a  highly  esteemed  member 
of  that  body ;  but  they  claimed  that  a  precedent  should 
then  be  established  that  would  serve  to  prevent  all  fur-    V^}     r- 


146  THE  PRACTICE  OF  DIPLOMACY 

ther  applications  in  the  future.  It  was  stated  in  the 
debate  that  only  one  similar  case  had  occurred,  and  that 
was  under  the  Continental  Congress.  Although  the 
Articles  of  Confederation  prohibited  officers  from  receiv- 
ing such  presents,  permission  had  been  granted  John 
Paul  Jones,  upon  the  special  application  to  Congress  of 
the  French  minister,  to  accept  a  decoration  from  the 
King  of  France  as  a  testimonial  of  his  majesty's  admira- 
tion for  his  great  bravery.  But  it  was  said  that  the  fact 
that  the  gallant  commodore  was  dubbed  a  chevalier  and 
permitted  to  wear  a  ribbon  had  only  subjected  him  to 
the  ridicule  of  his  countrymen. 

The  resolution  granting  the  permission  was  rejected, 
but  a  few  days  later,  at  the  request  of  the  chairman  of 
the  committee  on  foreign  affairs,  who  had  advocated  the 
measure,  a  further  resolution  was  unanimously  adopted 
that  the  House  was  "  induced  to  such  refusal  solely  by 
motives  of  general  policy,  and  not  by  any  view  personal" 
^"  to  General  Pinckney.  The  chairman  said  that  "  the 
purity  of  this  gentleman's  character,  and  the  impbr- 
*  \  V  N  tance  of  his  services  furnished  a  happy  opportunity  of 
establishing  an  invariable  rule  precluding  the  accept- 
ance of  presents,  which  no  merit  hereafter  should  in- 
.  duce  the  House  to  depart  from."  \  It  is  curious  to  note 
that  General  Pinckney  was  the  brother  of  C.  C.  Pinck- 
ney, the  author  of  the  clause  of  the  Constitution  prohib- 
iting presents. 

It  is  not  stated  what  was  the  present  tendered  by  the 
Spanish  government,  but  it  seems  to  have  been  a  gold 
snuffbox.   The  value  of  the  present  from  the  British  gov- 

1  Annals  of  Congress,  5th  Cong.,  vol.  2,  1570,  1583,  1775. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    147 

ernment  may  be  seen  from  the  following  extract  from  the 
Diary  of  John  Quincy  Adams,  written  on  taking  leave 
of  the  court  at  the  conclusion  of  his  mission  in  1817 :  — 

"  Chester  [the  master  of  ceremonies]  inquired  of  me 
in  what  manner  I  should  choose  to  receive  the  usual  pre- 
sent given  to  foreign  ministers  on  the  termination  of 
their  missions,  which,  he  said,  was  for  ambassadors  of  the 
value  of  one  thousand  pounds  sterling  and  for  ministers 
five  hundred  pounds  sterling.  I  told  him  that  by  the  Con- 
stitution of  the  United  States  no  person  in  their  service 
was  permitted  to  accept  a  present  from  any  foreign  sov- 
ereign, and  I  must  therefore  decline  any  one  that  might 
be  offered  me  here."   Mr.  Adams  added  this  comment :  — 

"  The  prohibition  of  the  Constitution  of  the  United 
States  in  this  case  has  my  hearty  approbation,  and  I 
wish  it  may  be  inflexibly  adhered  to  hereafter.    The  us- 
age itself,  as  practiced  by  all  European  governments,  is, 
in  my  judgment,  absurd  and  indelicate,  with  at  least  very 
strong  tendencies    to  corruption.     On  the  part    of   the 
United  States  there  is  a  peculiar  reason  for  prohibiting  f 
their  servants  from  taking  such  gifts,  because,  as  they ; 
never  make  presents  to  the  ministers  of  foreign  powers  \ 
who  have  been  accredited  to  them,  there  is  not  even  the  i  \ 
plea  of  reciprocity  to  allege  for  allowing  it.   For  Ameri- 1 
can  ministers  to  be  receiving  gifts  from  foreign  powers  \ 
whose  diplomatic  agents  in  America  never  receive  any-  I 
thing  in  return  would  exhibit  them  rather  as  beggars   j 
receiving  alms  from  opulent  princes  than  as  the  inde-    \ 
pendent  representatives  of  a  high-minded  and  virtuous    ( 
republic."  ^ 

»  3  J.  Q.  Adams's  Memoirs,  527. 


148  THE  PRACTICE  OF  DIPLOMACY 

The  action  of  Congress  in  1798  on  General  Pinck- 
ney'  s  case  stood  for  many  years  as  a  precedent  against 
allowing  officers  of  the  United  States  to  receive  presents 
or  decorations  from  foreign  governments.  But  the  pro- 
hibition of  the  Constitution  did  not  embrace  citizens  not 
in  the  public  service,  and  the  French  Legion  of  Honor 
was  being  tendered  to  and  accepted  by  private  citizens 
until  it  attracted  the  attention  of  Congress.  The  sub- 
ject was  fully  discussed  by  that  body,  and  an  amendment 
to  the  Constitution  was  passed  by  a  two-thirds  vote 
in  1809,  declaring  that  if  any  citizen  should  accept  any 
present  or  emolument  of  any  kind  whatever  from  a  for- 
eign king,  prince,  or  power,  such  person  should  cease 
to  be  a  citizen  of  the  United  States.  On  the  passage  of 
the  proposed  amendment,  its  purpose  was  announced 
to  be  to  determine  "whether  or  not  we  were  to  have 
members  of  the  Legion  of  Honor  in  this  country." 

Eleven  of  the  seventeen  States  ratified  it,  some  of 
them  by  a  unanimous  vote;  two  States  divided  as  to 
their  senate  and  house,  two  rejected  the  amendment, 
and  two  States  omitted  to  vote  upon  it.^  The  argument 
of  the  opposition  was  that  the  existing  provision  of  the 
Constitution  was  sufficient,  and  that  a  sweeping  pro- 
hibition should  not  be  adopted,  as  in  certain  highly 
meritorious  cases  the  decoration  might  be  worthily 
bestowed.  Although  the  amendment  failed  because  a 
vote  in  its  favor  of  three  fourths  of  the  States  was 
not  obtained,  it  was  apparent  that  the  sentiment  of  the 
country  was  very  strongly  against  the  acceptance  of  the 

1  Annals  of  Congress,  11th  Congress,  part  1,  530,  547,  549,  571,  576, 
635,  671 ;  part  2,  2006,  2050  ;  2  Doc.  Hist,  of  Constitution,  452,  etc. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    149 

Legion  of  Honor  or  any  other  foreign  decoration  even 
by  a  private  citizen  of  the  United  States.  Justice  Story, 
in  commenting  upon  the  amendment,  says  the  provision 
of  the  Constitution  "  is  highly  important,  ...  it  is 
founded  in  a  just  jealousy  of  foreign  influence  of  every 
sort,"  and  that  the  prohibition  ought  to  be  extended 
to  private  citizens  the  same  as  to  officers  of  the  gov- 
ernment. 

No  further  action  seems  to  have  been  taken  by  Congress 
on  the  subject  until  1835,  when  the  Emperor  of  Morocco 
sent  to  the  President  through  the  consul  at  Tangier,  two 
blooded  horses  and  a  hon.  Congress  passed  a  joint  reso- 
lution directing  that  the  horses  be  sold  and  the  money 
given  to  the  orphan  asylums  of  the  District  of  Columbia, 
and  the  President  was  authorized  to  present  the  lion  to 
some  suitable  institution  or  individual.  This  led  to  the 
issuance  of  a  circular,  by  order  of  President  Jackson, 
to  our  ministers  and  consuls,  directing  them  to  make 
known  to  foreign  governments  that  presents  of  all  kinds 
to  our  officers  were  prohibited  by  the  Constitution,  and 
that  they  should  not  receive  them  when  tendered.  But 
this  did  not  prevent  the  Imaum  of  Muscat  from  dis- 
patching a  vessel  carrying  a  variety  of  presents  to  the 
President.  The  arrival  of  the  vessel  in  New  York  in 
1840  attracted  general  attention,  and  occasioned  a  long 
debate  in  Congress.  John  Quincy  Adams  occupied  the 
floor  during  two  days,  with  a  speech  of  several  hours  in 
length,  in  which  he  contended  that  the  presents  should 
not  be  received,  and  gave  an  interesting  review  of  the 
monarchical  practice  of  decorations  and  present  giving, 
which  he  denounced  as  demoralizing,  and  which  ought 


150  THE  PRACTICE  OF  DIPLOMACY 

not  to  be  recognized  by  a  republican  government.  It 
was  held,  however,  that  we  could  not  refuse  them  with- 
out giving  offense  to  the  "  barbarian  "  ruler,  who  had  on 
previous  occasions  shown  great  friendship  to  American 
vessels  in  distress,  and  Congress  finally  accepted  the  pre- 
sents, and  directed  that  such  of  them  as  were  not  suit- 
able to  be  placed  in  the  Department  of  State  should  be 
sold  and  the  proceeds  deposited  in  the  Treasury.^ 

The  attitude  of  Congress  being  so  strongly  against 
the  practice  of  receiving  presents,  the  offer  of  them  by 
foreign  governments  had  fallen  largely  into  disuse,  but 
has  been  revived  in  recent  years.  The  Printed  Instruc- 
tions of  the  Department  of  State  on  the  subject  are 
very  explicit,  as  is  seen  from  the  following  extract. 
After  citing  the  constitutional  provision,  they  say  :  — 

"  It  not  infrequently  happens  that  diplomatic  offi- 
cers are  tendered  presents,  orders,  or  other  testimoni- 
als in  acknowledgment  of  services  rendered  to  foreign 
states  or  their  subjects.  It  is  thought  more  consonant 
with  the  character  of  the  diplomatic  representation  of 
the  United  States  abroad  that  every  offer  of  such  pre- 
sents should  be  respectfully  but  decisively  declined.  .  .  . 
Should  there  be  reason  to  anticipate  such  an  offer, 
informal  notice,  given  in  the  proper  quarter,  of  the 
prohibition  against  accepting  a  direct  tender  thereof 
would  avoid  the  apparent  ungraciousness  of  declining 
a  courtesy."  ^ 

The  more  troublesome  practice  to  control  is  that  of 

Congressional   Globe,  26th  Cong.,  1st  Sess.,  July  7-10,  1840,  vol.  8, 
512-519  ;  4  Statutes  at  Large,  792  ;  5  ib.  409,  730. 

2  Instructions  to  the  Diplomatic  Officers  of  the  United  States,  1897,  27. 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    151 

the  tender  of  decorations  and  orders.  Not^vitlistanding 
our  professions  of  democratic  principles,  there  seems  to 
be  a  widespread  desire  in  the  country  to  secure  from 
foreign  governments  an  order  and  the  right  to  wear  a 
ribbon,  a  gilt  emblem,  or  other  bauble  ;  and  Congress  of 
late  has  been  frequently  applied  to  for  the  removal 
of  the  constitutional  disability  in  this  respect  in  favor 
of  a  minister,  or  officer  of  the  navy,  army,  or  other 
department  of  the  service,  on  whom  some  foreign  gov- 
ernment wishes  or  has  been  induced  to  confer  a  decora- 
tion. I  have  cited  the  opinion  of  John  Quincy  Adams, 
the  man  of  widest  diplomatic  experience  in  the  history 
of  our  country,  as  to  the  inconsistency  and  evil  influence 
of  presents  and  decorations  on  our  ministers  abroad. 
Our  naval  officers  are  those  who  in  recent  days  have 
been  most  exposed  to  the  temptation.  They  visit  foreign 
ports  in  our  men-of-war,  burn  powder  in  salutes,  ex- 
change courtesies,  and  open  champagne.  Such  martial 
feats  would  hardly  seem  to  call  for  any  special  action 
of  either  government.  But  there  has  appeared  in  the 
newspapers  the  following  announcement :  — 

"Minister  Loomis  has  informed  the  Department  of 
State  that  the  Venezuelan  government  desires  to  con- 
fer upon  Admiral and   the  commanding  officers 

of  the  North  Atlantic  Squadron,  who  recently  visited 
La  Guaira,  the  decoration  of  the  Order  of  the  Bust  of 
Bolivar." 

To  meet  the  desires  of  the  Venezuelan  government 
a  special  act  of  Congress  would  be  required,  but  the 
"unspeakable"  Turk  seems  to  more  perfectly  grasp  the 
situation.    The  recent  visit  of  one  of  our  naval  vessels 


152  THE  PRACTICE  OF  DIPLOMACY 

to  the  Bosporus  was  followed  by  the  following  press  tele- 
gram :  — 

"  The  Sultan  of  Turkey  has  just  decorated  a  young 

New  York  lawyer, ,  son  of  Capt. ,  of  the 

Navy,  as  a  mark  of  his  esteem  for  Capt. ,  who  could 

not  accept  a  foreign  decoration  without  the  consent  of 
Congress,  for  which  he  did  not  wish  to  ask." 

This  same  monarch,  who  was  denounced  by  Gladstone 
as  "  the  great  assassin,"  and  whose  disregard  of  Ameri- 
can rights  has  already  been  noticed,  has  similar  methods 
of  concihating  American  ministers.  Those  officials  can- 
not receive  his  medals  and  ribbons,  but  some  of  them 
have  allowed  Abdul  Hamid  to  decorate  their  wives  with 
some  of  his  various  orders,  or  to  bestow  rich  jewels  upon 
their  daughters — an  evasion  of  the  constitutional  pro- 
hibition of  scant  credit  to  American  representatives. 

Similar  to  the  heroic  exploits  of  naval  officers,  such 
as  just  narrated,  which  have  commanded  the  gratitude  of 
foreign  rulers,  are  the  services  rendered  by  military  offi- 
cers on  junketing  tours  to  witness  military  manoeuvres 
abroad,  and  by  other  government  officials  detailed  to 
receive  the  guests  of  the  nation,  as  in  the  case  of  the 
French  representatives  at  the  dedication  of  the  Rocham- 
beau  statue,  and  the  visits  of  Prince  Henry  of  Ger- 
many and  the  crown  prince  of  Siam,  which  have  evoked 
the  tender  of  ribbons  of  the  Legion  of  Honor,  gold 
cigarette  cases,  diamond  pins,  photographs,  and  various 
other  evidences  of  sovereign  appreciation. 

On  the  return  of  Prince  Henry  from  his  visit  to  the 
United  States  a  few  years  ago,  press  telegrams  from 
Berlin  announced  that  the  German  cabinet  had  prepared 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    153 

a  list  of  about  three  hundred  American  officials  and 
citizens,  who  were  to  receive  recognition  for  their  atten- 
tions to  the  prince  during  his  visit.  This  recognition 
consisted  in  the  bestowal  of  imperial  orders  or  decora- 
tions, cigarette  cases,  diamond  pins,  silver  inkstands, 
photographs  of  the  prince,  etc.  Quite  a  number  of  Fed- 
eral officials  were  in  the  list,  and  application  was  made  to 
Congress  to  suspend  the  constitutional  prohibition,  but 
Congress  has  thus  far  failed  to  pass  the  necessary  bills 
for  that  purpose. 

A  writer,  who  took  the  trouble  to  make  the  compila- 
tion twenty-five  years  ago,  stated  that  there  were  then 
in  existence  no  less  than  one  hundred  and  forty-three 
national  orders,  and  it  is  estimated  that  the  number  now 
exceeds  two  hundred.  It  is  said  that  there  are  500,000 
persons  entitled  to  wear  the  Legion  of  Honor.  It  has 
been  satirically  stated  by  diplomatic  writers  that  sover- 
eigns have  found  it  much  cheaper  to  confer  on  foreign 
officials  an  order  and  a  decoration  than  even  a  service  of 
porcelain  or  a  piece  of  Gobelins  tapestry,  and  that  for 
this  reason  they  are  now  more  freely  tendered.  We  have 
been  accustomed  in  this  country  to  regard  the  insignia 
of  the  Legion  of  Honor  as  a  testimonial  of  distinguished 
merit  on  the  part  of  its  wearer,  but  the  democratic  citizens 
of  America  who  seem  so  eager  to  obtain  it  will  be  sur- 
prised to  learn  the  estimate  in  which  it  is  held  by  some 
intelligent  Frenchmen.  A  well-known  Parisian  writer, 
M.  Gobier,  the  editor  of  "L'Aurore,"  in  an  article 
contributed  a  few  years  ago  to  the  New  York  "  Inde- 
pendent," ^  has  this  to  say  of  it :  — 

1  The  Independent,  New  York,  April  26,  1900. 


154  THE  PRACTICE  OF  DIPLOMACY 

"  The  ribbon  which  is  the  most  sought  after  is  red  in 
color.  It  is  called  the  Cross  of  the  Legion  of  Honor,  it 
is  sold  in  the  ministries  at  varying  prices,  or  is  given 
gratuitously  to  the  sleeping  partners  of  politicans,  to 
the  purveyors  of  public  departments,  to  the  brothers 
or  husbands  of  the  mistresses  of  official  personages. 
Two  generals  of  our  glorious  army  —  one  a  count  and 
a  senator,  the  other  assistant  chief  of  the  grand  staff 
—  have  been  condemned  to  ignominious  penalties  for 
having  too  openly  trafficked  in  the  Legion  of  Honor ; 
one  President  of  the  republic  was  even  expelled  because 
his  son-in-law  gave  crosses  as  premiums  to  the  subscrib- 
ers of  his  newspaper.  But  these  accidents  have  not 
paralyzed  so  fruitful  a  commerce.  There  is  not  a  fine 
bankruptcy  or  a  fine  trial  for  swindling  where  all  the 
accused  are  not  ornamented  with  the  red  ribbon ;  and 
when  you  are  in  Paris  and  you  find  yourself  in  a  public 
conveyance,  at  the  theatre,  or  at  a  table  d'hote,  by  the 
side  of  a  gentleman  who  wears  this  precious  ribbon,  you 
are  most  urgently  recommended  to  keep  watch  on  your 
pocket-book." 

As  I  have  intimated,  the  rule  which  was  established 
by  the  Fifth  Congress  in  the  case  of  General  Pinckney, 
by  the  statesmen  who  framed  the  Constitution  and  set  our 
government  in  motion,  and  which  was  for  so  many  years 
strictly  followed,  has  in  recent  times  been  somewhat 
relaxed.  In  the  debate  over  the  Pinckney  resolution  it 
was  recognized  that  some  cases  of  extraordinary  merit 
might  arise  which  would  justify  an  exception  to  the 
constitutional  prohibition.  But  it  does  not  seem  appro- 
priate in  the  case  of  diplomats  or  others  still  in  the  pub- 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    155 

lie  service,  or  much  less  of  officers  of  the  army,  navy, 
or  other  departments  who  gratify  foreign  rulers  and 
princes  by  the  mere  discharge  of  ordinary  service.  Con- 
gress should  be  permitted  to  occupy  itself  in  more 
important  business  than  in  suspending  a  wise  constitu- 
tional provision  in  order  to  enable  one  of  its  republican 
officials  to  display  a  royal  gewgaw. 

We  have  seen  that  the  present  which  the  Spanish 
government  tendered  to  General  Pinckney  in  1795,  and 
which  Congress  withheld  from  him,  was  a  gold  snuffbox; 
also  that  the  British  plenipotentiary  attending  the  con- 
ferences at  the  close  of  the  Napoleonic  wars  received  as 
presents  twenty-four  snuffboxes  of  the  value  of  one 
thousand  pounds  each.  These  richly  jeweled  boxes  were 
the  diplomatic  fashion  a  century  and  more  ago,  but  the 
fashion  has  changed.  As  a  reminder  of  the  olden  time, 
Sir  Charles  Russell,  afterward  Lord  Chief  Justice  of 
England,  the  British  senior  counsel  in  the  Bering  Sea 
arbitration  at  Paris  in  1893,  a  great  collector  of  historic 
snuffboxes,  carried  a  precious  one  and  was  constantly 
offering  its  contents  to  his  colleagues. 

But,  as  Prince  Henry's  list  of  presents  shows,  snuff- 
boxes have  given  place  in  diplomacy  to  cigarette  cases. 
No  longer  is  the  old  diplomat's  advice,  already  quoted, 
applicable,  to  "take  snuff  often  and  slowly."    The  jjrise^l    ^^ 
from  the  bejeweled  box  is  now  displaced  by  the  cigarette, '    '       "^ 
and  the  diplomatist  collects  his  thoughts  and  prepares 
his  replies  amid  the  slowly  curhng  smoke  of  Turkish     ^ 
tobacco. 

An  unimportant  exception  is  made  to  the  rule  of  the 
government  not  to  give  presents  to  foreigners,  in  the 


156  THE  PRACTICE  OF  DIPLOMACY 

permission  granted  to  our  embassies  and  legations  in 
some  of  the  capitals  of  Europe  to  give  gratuities  to  cer- 
tain sub-officials,  messengers,  or  servants  attached  to 
the  royal  palace  or  foreign  office  for  attentions  or  ser- 
vices rendered ;  and  a  special  allowance  is  made  there- 
for by  the  department.  These  are  generally  given  on 
presentation  of  the  envoy  and  at  Christmas  or  Easter. 
It  is  related  of  the  wife  of  a  newly  arrived  American 
minister  at  one  of  the  courts  that  she  was  greatly  touched 
by  the  delicate  attention  of  the  receipt  of  a  beautiful 
bouquet  fresh  from  the  royal  gardens;  but  much  of 
the  aroma  was  taken  away  when  she  was  informed  that 
it  was  merely  the  reminder  of  the  royal  gardener  that  he 
was  not  to  be  forgotten  when  the  legation  gratuities  were 
distributed. 

The  inconvenience  which  sometimes  results  from  the 
distribution  of  these  gratuities  is  illustrated  by  an  inci- 
dent of  my  residence  in  Russia.  An  audience  of  the 
emperor  had  been  arranged  for  me  to  deliver  an  auto- 
graph letter  from  the  President  tendering  his  condolence 
on  the  assassination  of  Alexander  II.  For  the  same  day 
an  audience  had  been  fixed  for  a  minister  of  one  of  the 
smaller  European  countries  to  present  his  letter  of  recall. 
The  audiences  were  to  take  place  at  Gatchina,  one  of 
the  imperial  country  palaces,  and  my  colleague  asked  to 
accompany  me,  and  that  my  chasseur  or  official  servant 
might  also  act  for  him. 

We  were  taken  in  great  state  in  an  imperial  railway 
carriage,  met  at  the  station  by  a  cavalry  escort  and  car- 
riages, assigned  rooms  in  the  palace  for  rest  and  prep- 
aration for  the  audiences,  and  when  these  were  termi- 


COURT  DRESS,  DECORATIONS,  AND  PRESENTS    157 

nated  we  were  entertained  at  a  state  luncheon.  While 
I  was  resting  in  my  room  and  awaiting  the  hour  of 
our  departure,  I  heard  a  violent  altercation  in  the  hall 
outside  and  sent  my  chasseur  to  inquire  the  cause.  He 
reported  that  my  colleague,  the minister,  was  quar- 
reling with  the  butler  and  other  servants  as  to  their  fees, 
he  charging  them  with  extortion.  I  knew  from  past 
experience  that  every  one,  from  the  commander  of  the 
cavalry  escort  to  the  last  servant  that  opened  a  door  for 
me,  would  not  refuse  a  douceur,  and  I  had  charged  my 
experienced  servant  to  arrange  matters  to  the  best  ad- 
vantage. My  more  economical  companion,  in  discharg- 
ing that  necessary  duty  himself,  had  fallen  into  trouble. 

Diplomats  are  not  the  only  personages  who  have  to 
pay  for  their  royal  entertainments.  The  monarchs  who 
are  entertained  by  their  "  cousins,"  the  rulers  of  other 
countries,  in  the  royal  palaces,  find  it  an  expensive  hos- 
pitality. For  instance,  it  has  been  authoritatively  stated 
that  the  late  King  of  Holland,  a  short  time  before  his 
death,  spent  forty-eight  hours  at  Buckingham  Palace. 
The  presents  which  he  felt  obliged  to  distribute  among 
the  members  of  Queen  Victoria's  household  amounted 
to  eighteen  thousand  dollars,  gifts  which  were  regarded 
by  the  recipients  not  as  favors,  but  as  perquisites. 

Mr.  James  Russell  Lowell  related  to  me  an  incident 
of  his  residence  as  minister  at  Madrid,  to  illustrate  the 
matter  of  diplomatic  dress  and  gratuities.  On  the  occa- 
sion of  a  royal  fete  day  Mr.  Lowell  repaired  to  the  pal- 
ace, attired  in  plain  evening  dress,  as  was  the  custom  of 
American  ministers  at  such  ceremonies.  The  carriage 
of  the  minister  from  one  of  the  republics  of  Central 


158  THE  PRACTICE  OF  DIPLOMACY 

America  preceded  his.  Owing  to  the  poverty  of  its 
treasury  this  repubhc  had  accepted  the  services  as  its 
representative  of  a  retired  resident  Spanish  merchant, 
who  performed  gratuitously  the  light  duties  of  his  post 
because  of  its  social  privileges.  On  such  occasions,  the 
royal  stairway,  famous  throughout  Europe  for  its  archi- 
tectural beauty,  the  pride  of  the  Spaniards,  was  lined 
on  each  side  at  every  step  with  the  royal  guard  in  gala 
uniform,  and  at  each  of  several  landings  there  was 
stationed  a  giant  halberdier  holding  a  huge  mediaeval 
battle-axe. 

As  Mr.  Lowell  ascended  the  stairway,  the  Central 
American  minister,  gorgeously  appareled  in  a  brilliantly 
gold-embroidered  uniform  with  jeweled  sword,  was 
saluted  at  each  landing  by  the  magnificent  halberdier 
with  a  heavy  whack  of  the  battle-axe  on  the  marble 
pavement,  which  resounded  through  the  arches.  As 
Mr.  Lowell  passed  the  landings  he  received  no  attention, 
as  he  bore  no  insignia  indicating  his  office.  Although  a 
very  modest  gentleman,  he  was,  as  the  world  knows, 
an  intense  American,  and  as  he  passed  from  one  landing 
to  another  and  heard  the  echoes  of  the  salutes  to  his 
colleague  preceding  him,  his  patriotic  blood  began  to 
boil,  and  at  the  last  landing  he  addressed  the  halber- 
dier in  good  Sj)anish,  "Do  you  know  who  I  am?"  Of 
course  the  soldier  had  to  respond,  "I  do  not."  "Well," 
said  Mr.  Lowell,  "  I  am  the  minister  plenipotentiary  of 
the  United  States  of  America,  the  greatest  nation  on 
the  earth,  and  if  you  don't  whack  the  next  time  I  pass 
you,  I  will  forget  you  at  Christmas ! " 


CHAPTER  Vm 

IMMUNITIES    OF   DIPLOMATS 

There  are  certain  immunities  or  privileges  extended  to 
diplomatic  representatives  under  international  law  and 
practice  which  grow  out  of  and  are  a  necessary  part  of 
their  representative  character,  *,These  immunities  were 
much  greater  two  and  three  centuries  ago  than  they 
are  to-day r^^iormerly,  not  only  were  their  houses  and 
carriages  exempt  from  all  local  jurisdiction,  but  in 
many  capitals  an  extensive  quarter  of  the  city  in  which 
their  residences  were  located  was  under  their  control 
and  free  from  even  police  supervision,  and  thus  became 
an  asylum  from  local  justice  and  a  refuge  for  criminals. 
They  enjoyed  not  only  all  personal  exemption  from 
legal  process  for  themselves  and  all  residing  within 
their  quarter 5-put  they  exercised  the  right  of  judgment 
and  consequently  of  life  and  death  over  the  members 
of  their  suite  ;  they  claimed  to  be  in  no  way  responsible 
Hrfor  then*  debts,  and  they  carried  their  freedom  from  ju- 
risdiction and  taxation  to  most  extravagant  lengths.  But  x^ 
hke  the  forms  and  ceremonies  which  formerly  attended  ] 
the  ambassadorial  service,  these  privileges  have  been  • 
greatly  diminished,  and  are  now  exercised  within  reason 
able  limits. 

In  general  terms,  it  may  be  stated  that  diplomatic    / 
agents  or  representatives  are  subject  only  to  the  law  of 


y 


160  THE  PRACTICE  OF  DIPLOMACY 

^he  state  which  sends  them,  and  are  free  from  the  juris- 
diction of  the  country  to  which  they  are  accredited ; 
and  this  immunity  extends  to  all  the  members  of  the 
mission,  the  envoy's  family  and  domestic  servants.  But 
this  rule  is  subject  to  various  exceptions.  An  envoy  is 
free  from  arrest  and  punishment  for  criminal  offense,\ 
but  his  conduct  may  be  of  such  a  flagrant  character  as  1 
to  justify  the  offended  government  in  disregarding  this  ' 
general  principle  on  the  ground  of  considerations  of 
public  safety.  The  usual  course  of  governments,  how- 
ever, in  cases  of  grave  crimes  or  misconduct,  is  to  ask 
for  the  recall  of  the  envoy  or  to  dismiss  him  summarily /X  ^ 
The  cases  are  cited  of  the  Swedish  minister  in  London 
in  1717,  and  of  the  Spanish  ambassador  in  Paris  the  next 
year,  detected  in  conspiracies  against  the  governments, 
who  were  arrested  and  held  as  prisoners  and  finally  ex- 
pelled from  the  respective  countries.^  It  has  of  late  years 
transpired  that  the  British  and  Spanish  ministers  in 
Washington  were  privy  to  the  conspiracy  of  Aaron  Burr, 
in  1804-05,  and  gave  encouragement  to  his  projects.^ 
Had  the  facts  been  known  at  the  time,  undoubtedly 
they  would  have  been  dismissed  from  the  country. 

The  immunity  of  the  envoy  does  not  extend  in  so 
strict  a  degree  to  his  servants.  The  coachman  of  Mr. 
Gallatin,  American  minister  in  London,  was  arrested  in 
1827  in  the  stable  of  the  legation  on  the  charge  of 
an  assault.  The  courts  held  that  he  was  amenable  for 
the  offense,  but  the  secretary  for  foreign  affairs  wrote 
Mr.  Gallatin  that,  while  the  legation  premises  were  not 

1  The  Principles  of  International  Law,  by  T.  J.  Lawrence,  1895,  275. 
'  3  H.  Adams,  History  of  the  United  States,  chaps.  10,  11. 


IMMUNITIES  OF  DIPLOMATS  1(>1 

exempt  from  entrance  for  service  on  a  servant  charged 
with  a  misdemeanor,  courtesy  required  that  they  should 
not  be  entered  without  permission  being  first  sohcited 
in  cases  where  no  urgent  necessity  pressed  for  the  im- 
mediate capture  of  an  offender.^ 

A  member  of  a  legation  cannot  be  required  to  appear 
in  court  as  a  witness  or  for  any  other  purpose.  The 
Dutch  minister  at  Washington  in  1856  was  witness  to 
a  homicide  in  a  hotel.  His  attendance  in  the  court  at 
the  trial  as  a  witness  was  deemed  essential,  and  the 
government  attorney  applied  to  the  secretary  of  state 
to  secure  his  presence.  The  minister  refused  to  attend, 
and  request  on  the  Netherlands  government  was  made, 
through  the  American  minister  at  The  Hague,  for 
instructions  to  its  minister  to  appear  and  testify,  at  the 
same  time  bringing  to  its  notice  the  provision  of  the 
Constitution  of  the  United  States  giving  the  right  to 
the  accused  to  be  confronted  with  the  witnesses  against 
him.  The  Netherlands  government  consented  that  the 
minister  might  appear  at  the  Department  of  State  and 
make  his  declaration  under  oath,  to  which  the  minister 
added  the  condition  that  he  should  not  be  subjected  to 
cross-examination.  Such  a  declaration  the  government 
attorney  said  would  not  be  admitted  as  evidence,  and  it 
was  not  made.  The  conduct  of  the  Dutch  minister  in 
manifesting  such  a  disinclination  to  meet  the  require- 
ments of  justice  was  so  displeasing  to  the  government 
of  the  United  States  that  he  ceased  to  be  persona  grata, 
and  he  was  soon  recalled.^ 

1  1  Wharton's  Digest,  650. 

2  S.  Ex.  Doc.  21,  34th  Cong.,  3d  Sess. 


162  THE  PRACTICE  OF  DIPLOMACY 

The  Printed  Instructions  remind  the  diplomatic  repre- 
sentative of  the  United  States  that  the  immunity  from 
criminal  and  civil  process  cannot  be  waived  except  by 
the  consent  of  his  government,  as  it  belongs  to  his 
office,  not  to  himself.  Neither  should  he  consent  to 
appear  before  a  tribunal  except  by  the  consent  of  his 
government.  Even  if  called  upon  to  give  testimony 
under  conditions  which  do  not  concern  the  business  of 
his  mission,  and  which  are  of  a  nature  to  counsel  him 
to  respond  to  the  interests  of  justice,  he  should  not  do 
so  without  the  consent  of  the  President,  which  in  such 
case  would  probably  be  granted. 

The  statutes  of  the  United  States  (Sects.  4063  and 
4064)  provide  that  any  writ  or  process  of  any  court 
of  the  United  States  or  of  a  State  against  a  diplomatic 
minister  or  any  domestic  servant  of  such  minister  shall 
be  void;  and  severe  penalties  are  prescribed  against 
any  person  who  shall  obtain  or  execute  such  a  writ  or 
process. 

A  few  instances  will  illustrate  the  exemption  of  mem- 
bers of  the  diplomatic  corps  from  arrest.  In  1892  the 
Swiss  charge  complained  to  the  secretary  of  state  that 
an  attache  of  the  legation  was  arrested  at  Bay  Ridge, 
Maryland,  suspected  of  theft ;  he  was  taken  by  the  police, 
against  his  claim  that  his  diplomatic  character  exempted 
him  from  arrest,  to  Annapolis  (near  by),  examined  by 
the  chief  officer  of  police,  and  discharged.  The  charge 
asked  for  the  punishment  of  the  officer  making  the 
arrest,  and  a  disavowal  of  the  act.  The  secretary  of 
state  transmitted  a  copy  of  the  charge's  note  to  the 
governor  of  Maryland,  and  asked  for  an  investigation 


IMMUNITIES  OF  DIPLOMATS  163 

and  appropriate  action.  The  case  was  investigated,  the 
policeman  declaring  that  no  claim  was  made  by  the 
attache  of  his  diplomatic  character  till  he  reached  An- 
napolis ;  the  policeman  was  dismissed  from  office,  and 
the  governor  tendered  an  apology  for  the  act,  which 
was  accepted  by  the  Swiss  government  as  satisfactory. 

One  of  the  secretaries  of  the  British  embassy  was 
arrested  in  1904  at  Lenox,  Massachusetts,  charged  with 
running  an  automobile  at  an  unlawful  speed,  and  taken 
before  a  local  magistrate.  The  secretary  pleaded  his  dip- 
lomatic exemption  from  arrest,  which  the  judge  refused 
to  recognize,  and  inflicted  a  fine.  The  matter  was  made 
the  subject  of  diplomatic  intervention ;  uj)on  the  gov- 
ernor calling  on  the  magistrate  for  an  explanation  of 
his  conduct,  the  latter  stated  that  he  had  no  knowledge 
of  the  United  States  statute ;  the  fine  was  remitted ; 
the  proper  apology  was  made;  and  the  incident  was 
closed. 

During  the  same  year  the  police  of  Washington  re- 
ported that  the  counselor  of  the  French  embassy  had 
been  guilty  of  speeding  his  automobile  in  violation  of 
law,  and  then  asserting  his  diplomatic  exemption  from 
arrest.  The  city  government  made  complaint  to  the 
secretary  of  state,  and  the  latter  referred  the  communica- 
tion to  the  French  ambassador,  who  in  reply  stated  to 
the  secretary  of  state  that  the  counselor  did  not  admit 
that  he  had  driven  his  machine  at  a  speed  prohibited  by 
law,  but  he  declared  that  if  such  was  the  fact  he  was 
sincerely  sorry,  for  it  must  have  been  an  inadvertence, 
as  he  was  always  desirous  of  obeying  the  laws  with  the 
most  punctilious  regard.  The  ambassador  expressed  the 


164  THE   PRACTICE   OF  DIPLOMACY 

hope  that  this  statement  would  be  acceptable,  and  it  was 
so  received  by  the  city  government. 

It  has  been  held  by  the  attorney-general  that  a  foreign 
minister  is  protected  not  only  from  violence,  but  from 
j  insult,  such  as  libel.  But  libeling  foreign  sovereigns  or 
governments  are  not  indictable  offenses.  The  trial  of 
William  Cobbett  in  1791  involved  these  questions,  and, 
being  complicated  with  domestic  politics,  attracted  wide- 
spread attention.^ 

The  tearing  down  of  the  flag  of  the  Spanish  minister 
in  a  riot  in  Philadelphia  in  1802  was  held  cognizable 
by  the  state  court.^  In  1892  the  French  minister  com- 
plained that  a  policeman  at  Jeanette,  Pennsylvania,  had 
torn  down,  rent  in  pieces,  and  thrown  into  the  mud  a 
French  flag,  displayed  by  a  French  citizen  from  his 
house  on  Decoration  Day.  The  policeman  said  that  no 
flag  but  the  "  Stars  and  Stripes  "  should  wave  on  that 
day.  The  secretary  of  state  referred  the  case  to  the 
governor  of  the  state,  by  him  it  was  brought  to  the 
attention  of  the  district  attorney,  and  by  the  latter  to 
the  town  authorities,  who  removed  the  policeman.  The 
French  government  expressed  its  appreciation  of  the 
satisfaction  accorded  in  the  case.  The  secretary  of  state 
in  his  letter  to  the  governor  said :  "  Although  the  flag 
is  only  a  national  emblem  when  displayed  by  a  compe- 
tent authority,  it  is  also  private  property  and  should 
under  no  circumstances  be  wantonly  injured  or  mutilated 
by  a  policeman  or  by  any  other  person  in  time  of  peace. 

1  1  Wharton's  Digest,  266  ;  3  Life  of  Pickering,  396  ff. 
^  1  Wharton's  Digest,  650  ;  as  to  attack  on  Russian  charge's  house,  see 
1  Wharton,  654. 


IMMUNITIES  OF  DIPLOMATS  165 

Neither  can  a  flag  be  regarded  as  a  mere  piece  of  bunt- 
mg. 

The  statutes  of  the  United  States  cannot  be  put  into 
execution  by  the  minister  of  a  foreign  power  merely  ad- 
dressing a  note  to  the  secretary  of  state,  complaining  of 
an  event  which  constitutes  an  infraction ;  judicial  pro- 
ceedings can  be  instituted  only  upon  complaint  sustained 
by  the  oath  of  a  credible  witness. 

As  a  diplomatic  agent  and  his  suite  are  free  from  legal 
process,  so  also  his  residence  and  office  are  free  from 
local  jurisdiction,  those  premises  being  held  to  possess 
certain  ex-territorial  qualities.  They  cannot  be  entered, 
or  searched,  under  process  of  local  law  or  by  the  local 
authorities ;  yet  there  are  limitations  of  or  exceptions  to 
this  rule.  When  a  criminal  takes  refuge  in  a  legation, 
he  should  be  surrendered  on  demand  of  the  authorities, 
and,  if  this  be  refused,  an  officer  of  the  law  would  be 
justified  in  entering  the  premises  to  make  the  arrest. 

Owing  to  the  ex-territorial  character  of  a  legation, 
the  child  of  a  minister,  or  member  of  his  suite,  being 
an  American  citizen,  would  be  held  to  have  been  born 
within  the  United  States. 

The  right  of  asylum  which  at  one  time  was  generally  . 
recognized  in  Europe  has  long  since  been  abandoned 
there,  and  it  is  now  held  that  the  immunity  of  the  mis- 
sion premises  from  local  jurisdiction  extends  only  to  the 
minister,  his  suite  and  household.    And  yet  to  a  limited  ' 
extent  the  practice  of  asylum  for  political  offenders  still  i 
exists   in   certain   Spanish  -  American    countries.     The 
Department  of  State  calls  the  attention  of  American  dip- 
lomatic agents  to  the  fact  that  in  some  countries,  where 


166  THE   PRACTICE   OF  DIPLOMACY 

frequent  insurrections  occur  and  consequent  instability 
of  government  exists,  the  practice  of  ex-territorial  asylum 
has  become  so  firmly  established  that  it  is  often  invoked 
by  unsuccessful  insurgents  and  is  practically  recognized 
by  the  local  government  to  the  extent  of  respecting  the 
premises  of  a  consulate  even  in  which  such  fugitives  may 
take  refuge.  The  government  of  the  United  States  does 
not  sanction  the  usage,  and  enjoins  upon  its  represent- 
atives in  such  countries  the  avoidance  of  all  pretexts  for 
its  existence.  While  indisposed  to  direct  its  represent- 
atives to  deny  temporary  shelter  to  any  person  whose 
life  may  be  threatened  by  mob  violence,  it  has  deemed 
it  proper  to  instruct  them  that  it  will  not  countenance 
them  in  any  attempt  knowingly  to  harbor  offenders 
against  the  laws  from  the  pursuit  of  the  legitimate 
agents  of  justice.^ 

The  correspondence  of  the  Department  of  State  fur- 
nishes many  instances  of  the  use  of  the  legations,  and 
sometimes  of  consulates,  in  the  Spanish- American  repub- 
lics as  places  of  asylum  by  members  of  one  or  the  other 
party  in  times  of  revolution  and  insurrection.  One  of 
the  most  noted  cases  in  recent  years  was  that  of  the 
American  legfation  during^  the  civil  war  in  Chili  of  1891. 
During  its  progress  the  legation  sheltered  some  of  the 
Congressional  party,  and  when  that  finally  triumphed, 
the  legations  of  all  governments  represented  at  the  capital 
were  resorted  to  by  the  Balmaceda  partisans  ;  President 
Balmaceda  himself  taking  refuge  in  the  Argentine  lega- 

^  For  citation  of  cases  and  rulings  of  Department  of  State,  see  Right  of 
Asylum  in  the  Legations  of  the  U.  S.,  by  Barrey  Gilbert,  in  Harvard  Law 
Review,  June,  1901,  118, 


IMMUNITIES  OF  DIPLOMATS  167 

ton,  where  lie  committed  suicide.  The  legation  of  the 
United  States  was  crowded  with  prominent  Balmacedists, 
who  fled  there  while  the  city  was  in  the  hands  of  a  mob 
engaged  in  sacking  the  houses  of  the  leading  members 
of  the  defeated  party.  When  the  new  government  was 
organized,  a  demand  was  made  on  the  American  minister 
for  the  surrender  of  his  guests.  This  being  refused,  a 
guard  was  thrown  about  the  legation  and  American  citi- 
zens and  other  visitors  to  it  were  arrested.  Upon  an  ear- 
nest protest  from  the  secretary  of  state  at  Washington 
the  troops  were  withdrawn,  but  the  legation  remained 
under  police  surveillance. 

Following  the  example  of  other  legations,  which  had 
applied  for  and  received  safe-conducts  for  their  in- 
mates to  leave  the  country,  the  American  minister,  Mr. 
Egan,  applied  to  the  Chilean  minister  of  foreign  affairs 
for  permission  to  the  refugees  in  his  legation  to  do  the 
same.  This  application  was  refused,  but  a  number  of 
them,  upon  private  assurance  of  safety,  quietly  left  the 
legation.  Several,  however,  remained,  and  after  demand 
being  made  by  the  Chilean  government  for  their  surren- 
der for  trial  on  the  charge  of  conspiracy  and  refusal  by 
the  American  minister,  it  was  finally  verbally  agreed,  at 
the  expiration  of  nearly  six  months  from  the  time  asylum 
was  taken  in  the  legation,  that  the  five  remaining  re- 
fugees should  not  be  molested  if  they  left  the  legation, 
went  to  the  seaport  of  Valparaiso,  and  took  passage  on 
a  foreign  ship.  They  were  accompanied  to  Valparaiso 
by  the  American  minister  and  the  Spanish  minister  with 
two  refugees  from  his  legation,  and  placed  on  board  an 
American  man-of-war  in  the  harbor,  whence  they  took 


168  THE  PRACTICE   OF  DIPLOMACY 

passage  abroad  in  a  British  passenger  steamer.  In  this 
case  the  question  of  asylum  was  complicated  with  an 
attack  upon  the  crew  of  the  United  States  naval  vessel 
Baltimore  in  the  streets  of  Valparaiso,  which  engen- 
dered bad  blood  between  the  two  countries.^ 

The  case  of  General  Barrundia,  who  was  arrested  on 
an  American  merchant  vessel  in  a  port  of  Guatemala, 
presents  the  question  of  the  extent  of  protection  afforded 
by  a  national  flag  in  a  foreign  port,  and,  being  akin  to 
the  subject  of  asylum,  calls  for  notice  in  this  connection. 
Barrundia,  a  citizen  of  Guatemala  and  former  minister 
of  war  of  an  administration  overthrown  by  force,  went 
to  Mexico,  organized  an  armed  expedition,  and  entered 
Guatemalan  territory  for  the  purpose  of  exciting  an 
insurrection  against  the  existing  government,  but  was 
defeated  and  escaped  to  Mexico.  He  then  took  passage 
at  a  Mexican  port  on  an  American  merchant  vessel, 
which  he  knew  would  in  the  course  of  its  voyage  touch 
at  ports  of  Guatemala,  and  purchased  a  ticket  for 
Panama ;  but  it  was  understood  he  expected  to  disem- 
bark at  a  port  of  Salvador,  which  country  was  at  the 
time  at  war  with  Guatemala,  the  latter  government  hav- 
ing proclaimed  martial  law  throughout  its  territory. 

On  the  arrival  of  the  vessel  in  a  Guatemalan  port  the 
captain,  learning  that  the  government  would  demand 
Barrundia's  surrender,  consulted  the  American  minister 
as  to  his  right  and  duty,  and  was  informed  in  a  telegram 
by  the  latter  that  Guatemala  "  has  the  right  to  arrest 
a  person  on  a  neutral  ship  in  its  own  waters  in  time  of 
war  for  any  cause  deemed    an  offense  under  interna- 

1  U.  S.  For.  Rel.  (1891)  Chili. 


IMMUNITIES  OF  DIPLOMATS  169 

tlonal  law."  On  the  day  the  telegram  was  sent  peace 
was  declared  between  Guatemala  and  Salvador  under  an 
agreement  preHminary  to  a  permanent  treaty.  A  Gua- 
temalan officer  with  a  squad  of  soldiers  boarded  the 
vessel  in  port,  and  on  his  attempt  to  arrest  Barrundia 
the  latter  resisted  with  firearms  and  was  killed,  where- 
upon his  body  and  personal  effects  were  taken  on  shore. 
The  action  of  the  American  minister  was  disapproved 
by  his  government.  Secretary  Blaine  writing  him  a  long 
dispatch  in  which  he  took  the  position  that  he  erred  in 
giving  the  advice  he  did  to  the  captain  of  the  vessel ; 
that  the  war  having  ended,  and  the  offense  charged  be- 
ing political,  the  passenger  was  protected  in  port  by  the 
American  flag  and  was  not  subject  to  arrest.  The  min- 
ister was  at  once  recalled  from  his  post  and  a  successor 
appointed  in  his  place ;  also,  the  commander  of  an 
American  naval  vessel  lying  in  the  port,  who  had  ac- 
quiesced in  the  arrest,  was  censured  by  his  government. 
A  strong  sentiment  prevails  that  the  action  of  the  gov- 
ernment of  the  United  States  was  too  severe.  The  better 
view  seems  to  be  that  stated  by  Secretary  Bayard  a 
short  time  before,  that  "  when  a  merchant  vessel  of  one 
country  visits  the  port  of  another  for  the  purposes  of 
trade  it  owes  temporary  allegiance  and  is  amenable  to 
the  jurisdiction  of  that  country."  It  is  hardly  to  be 
expected  that  a  government  would  refrain  from  taking 
from  a  foreign  merchant  vessel  one  of  its  own  citizens 
who  was  eniraffed  in  fomentino;  rebellion  and  who  had 
knowingly  and  voluntarily  come  within  its  territory.^ 


1  For  Barrundia  Correspondence,  H.  R.  Ex.  Doc.  51,  51st  Cong.,  2d 
Sess. 


170  THE   PRACTICE   OF   DIPLOMACY 

A  minister  and  his  suite  are  not  only  free  from  civil 
process  for  debt,  but  the  property  of  the  legation  and 
their  personal  and  household  effects  are  free  from  seizure 
therefor.  It  has  been  decided  that  the  personal  effects 
of  an  attache  cannot  be  seized  and  held  by  a  hotel- 
keeper.^ 

Mr.  Wheaton  in  his  treatise  on  international  law "  has 
discussed  at  length  the  question  how  far  the  personal 
effects  of  a  diplomatic  of&cer  are  liable  to  be  seized  or 
detained,  in  order  to  enforce  the  performance,  on  his 
part,  of  the  lease  of  a  dwelling-house.  In  this  case  the 
landlord  brought  in  a  claim  for  damage  to  the  premises 
occupied  by  Mr.  Wheaton  while  American  minister  in 
Berlin.  He  contested  the  right  of  the  authorities  to  de- 
tain his  personal  effects  to  respond  for  the  claim.  They 
were  finally  restored  to  him  on  payment  of  a  reasonable 
compensation  for  the  injury  done  to  the  premises,  but 
both  he  and  his  government  denied  that  the  proceeding 
was  well  founded  in  international  law.  The  minister 
regarded  it  as  important  to  contest  the  case  for  the  sake 
of  the  principle  involved,  and  he  was  doubtless  techni- 
cally correct,  but  his  conduct  was  severely  censured 
by  European  writers,  who  pointed  out  the  case  of  the 
minister  of  Hesse  Cassel  at  Paris  in  the  past  century, 
who  was  refused  his  passports  and  not  permitted  to 
leave  France  till  his  debts  were  secured.^ 

The  government  of  the  United  States  disapproves  of 
a  resort  by  its  representative  to  diplomatic  privileges  to 

^  3  Opinions  Attorneys-General,  69. 

2  The  Elements  of  International  Law,  Henry  Wheaton,  part  3,  chap.  1. 

8  International  Vanities,  Marshall  (1875),  257,  259. 


IMMUNITIES  OF  DIPLOMATS  171 

escape  indebtedness.  While  the  Printed  Instructions  set 
forth  the  immunity  from  arrest  and  process,  they  add 
this  caution :  "  It  is  not  to  be  supposed  that  any  repre- 
sentative of  this  country  would  intentionally  avail  him- 
self of  this  right  to  evade  just  obligations."  Secretary 
Fish,  in  an  instruction  to  one  of  our  ministers  at  a 
European  court,  wrote :  "  An  envoy  is  not  clothed  with 
diplomatic  immunity  to  enable  him  to  indulge  with  im- 
punity in  personal  controversy,  or  to  escape  liabilities 
to  which  he  otherwise  might  be  subjected.  The  assertion 
of  these  immunities  should  be  reserved  for  more  im- 
portant and  delicate  occasions,  and  should  never  be  made 
use  of  when  the  facts  of  the  particular  case  expose  the 
envoy  to  the  suspicion  that  private  interests  or  a  desire 
to  escape  personal  or  pecuniary  liability  is  the  motive 
which  induces  it."  ^ 

The  personal  effects  of  a  diplomatic  officer,  the  pro- 
perty of  the  mission,  and  the  real  estate  occupied  by  the 
legation  residence  and  office,  if  owned  by  the  foreign 
government,  are  exempt  from  taxation ;  but  this  ex- 
emption does  not  usually  extend  to  water  rents  and 
lighting  charges. 

A  privilege  accorded  to  a  legation  is  that  of  freedom 
of  religious  worship.  This  was  formerly  very  highly 
esteemed  because  of  the  intolerance  which  prevailed, 
and  which  has  not  entirely  ceased  to  exist  even  in 
Europe.  This  privilege  carries  with  it  a  right  to  main- 
tain a  chapel  in  the  legation  premises,  other  foreign 
residents  being  permitted  to  attend  services  held  there. 
Up  to  recent  years  the  only  place  in  which  Protestant 

1  1  Wharton's  Digest,  643. 


172  THE  PRACTICE  OF  DIPLOMACY 

worship  could  be  lawfully  held  in  Madrid,  Spain,  was  in 
the  chapel  maintained  by  the  British  legation. 

A  diplomatic  representative  is  conceded  the  privilege 
of  the  free  importation  of  effects  for  his  personal  or 
official  use,  or  for  the  use  of  his  immediate  family.  The 
privilege  is  extended  only  to  the  heads  of  missions.  It 
is  a  usage  founded  upon  comity  rather  than  an  inherent 
right.  In  the  United  States  it  is  not  based  upon  a  law 
of  Congress,  and  is  a  matter  entirely  within  the  dis- 
cretion of  the  treasury  department.  In  some  countries, 
as  in  Spain,  the  amount  in  value  which  a  minister  may 
import  free  is  limited  to  a  fixed  sum.  In  the  United 
States  it  is  unlimited,  but  granted  only  upon  written 
application  or  notice  by  the  foreign  minister  to  the 
secretary  of  state,  who  advises  the  customs  authorities 
through  the  secretary  of  the  treasury,  and  in  this  way 
a  record  is  kept  of  the  importations.  American  diplo- 
matic officers  returnino;  to  the  United  States  are  allowed 
free  entry  of  their  personal  effects,  but  this  also  is 
founded  upon  courtesy,  and  is  not  specifically  authorized 
by  law. 

As  there  exists  no  positive  law  for  the  exemption  at 
the  custom  house  of  the  duties  on  personal  effects  of  for- 
eign officials,  a  notice  to  the  customs  authorities  of  their 
expected  arrival  is  required  in  each  case.  J.  Q.  Adams 
related  that  during  his  residence  in  England  the  Allied 
Sovereisrns  who  visited  London  after  the  battle  of  Water- 
loo  were  required  to  submit  to  an  examination  of  their 
baggage  at  Dover,  because  of  the  failure  of  the  customs 
authorities  to  receive  instructions.  For  a  like  reason, 
Mr.  Rush,  before  the  time  of  steam  vessels,  driven  by 


IMMUNITIES  OF  DIPLOMATS  173 

stress  of  weather  in  1817  into  "an  unexpected  English 
port,  was  subjected  to  a  rigid  scrutiny  of  his  effects  at 
the  custom  house.  "  Everything  was  ransacked ;  even 
the  folds  of  linen  opened;  nothing  was  overlooked ; " 
and  some  articles  contraband  under  the  law  were  tem- 
porarily detained.^ 

Foreign  ministers  enjoy  certain  privileges  in  time  of 
war.  They  are  entitled  to  free  communication  by  corre- 
spondence with  their  own  government,  even  if  the  place 
of  their  residence  is  in  a  state  of  siege  or  blockade. 
During  the  siege  of  Paris  in  1870  the  diplomatic  corps 
received  notice  from  the  German  authorities  that  dis- 
patch bags  for  their  respective  governments  would  be 
permitted  to  pass  only  on  condition  that  the  dispatches 
were  unsealed  and  subject  to  their  inspection.  The 
diplomatic  corps  protested,  and  Mr.  Washburn  deter- 
mined not  to  send  dispatches  under  such  conditions.  In 
the  correspondence  which  ensued  between  the  two 
governments  Secretary  Fish  declared  the  condition  to 
be  humiliating  and  such  as  could  not  be  accepted  by  a 
diplomatic  agent  with  any  self-respect.  Count  Bismarck 
recognized  the  right  of  diplomats  to  have  free  and  con- 
fidential intercourse  with  their  governments,  but  stated 
that  some  allowance  should  be  made  for  military  exigen- 
cies, and  that  the  temporary  obstruction  arose  from 
causes  which  he  could  not  control.  The  suspension  of 
free  intercourse  was  brief .^ 

Diplomatic    agents   are   entitled  to  pass  through  a 

1  Rush's  Court  of  London,  14. 

2  For    correspondence,  U.  S.  For.   Rel.  1870,   127  ;  1871,  283,  377 ; 
Washburn's  Recollections,  159,  308. 


174  THE  PRACTICE  OF  DIPLOMACY 

blockade.  A  belligerent  has  no  right  to  stop  the  pas- 
sage of  a  minister  from  a  neutral  state  to  the  other 
belligerent,  unless  the  mission  of  such  representative 
is  hostile  to  the  first  belligerent.  A  minister  residing 
at  the  capital  has  the  right  to  communicate  with  the 
consuls  of  his  government  located  in  a  portion  of  the 
country  in  revolt.  During  the  American  Civil  War  some 
trouble  was  occasioned  the  British  minister  in  commu- 
nicating with  British  consuls  within  the  Confederate 
lines  by  the  military  officers  of  the  United  States,  but 
all  detention  or  interference  with  the  official  dispatch 
bags  was  promptly  disavowed  by  the  secretary  of  state. 

The  immunity  of  a  diplomatic  representative  may  be 
surrendered  by  his  own  act,  as  when  he  institutes  a  suit 
or  voluntarily  submits  to  judicial  jurisdiction ;  when  he 
is  a  citizen  of  the  state  to  which  he  is  accredited;  or 
when  he  engages  in  trade,  and  suit  is  brought  in  respect 
of  such  trading  arrangements. 

The  diplomatic  immunities  apply  to  a  foreign  repre- 
sentative for  a  reasonable  time  after  he  has  given  up 
his  post,  while  he  is  preparing  to  leave  the  country.  A 
change  in  the  government  by  which  a  foreign  minister 
is  accredited  suspends  the  activity  of  his  functions,  but 
does  not  necessarily  terminate  them,  and  during  such 
suspension  he  is  entitled  to  the  immunities  of  a  public 
minister.^ 

1  Case  of  Portuguese  minister  in  Washington,  1  Wharton's  Digest, 
618;  2  Opinions  Attorneys-General,  290. 


CHAPTER  IX 

THE    TERMINATION    OF   MISSIONS 

A  DIPLOMATIC  official  terminates  his  mission  by  resig- 
nation, by  his  transfer  to  another  post,  by  his  dismissal, 
or  by  his  recall.  A  change  of  parties  in  the  United 
States  by  popular  election  brings  about  an  almost  com- 
plete change  in  the  diplomatic  service.  Ambassadors 
and  ministers  are  expected  to  tender  their  resignations 
on  a  change  of  the  home  government,  and  the  resigna- 
tions usually  reach  Washington  in  time  to  be  in  the 
hands  of  the  new  secretary  of  state  when  or  very  soon 
after  he  assumes  office.  If  in  any  case  a  resignation  is 
not  so  tendered,  when  a  new  appointment  is  determined 
upon  the  delinquent  incumbent  is  informed  of  the  pro- 
posed change,  and,  if  his  resignation  is  not  then  ten- 
dered, he  is  usually  summarily  recalled. 

Likewise  changes  often  occur  during  the  same  ad- 
ministration by  removal.  In  the  case  of  an  envoy 
against  whom  no  charges  are  brought,  when  a  change 
is  determined  upon,  the  incumbent  should  be  notified 
in  advance  of  the  intended  change  and  an  opportunity 
afforded  him  to  tender  his  resisrnation.  Instances  have 
occurred  where  grave  injustice  has  been  done  to  faith- 
ful representatives  by  allowing  them  to  learn  of  their 
removal  through  the  public  press.  Such  occurrences 
bring  the  American  diplomatic  service  into  disrepute. 


176  THE   PRACTICE   OF  DIPLOMACY 

The  commission  of  an  American  diplomatic  officer 
runs  without  limit  as  to  time.  At  the  beginning  of  the 
government,  appointments  were  made  for  a  given  pe- 
riod, usually  three  years;  for  instance,  Franklin  and 
Jefferson,  ministers  to  France,  and  John  Adams,  to 
England,  were  appointed  for  the  specified  period  of 
three  years.  Mr.  Jefferson  was  of  the  opinion  that  no 
American  minister  ought  ever  to  be  absent  from  home 
at  European  courts  more  than  five  or  six  years  at  a 
time.  When  secretary  of  state,  he  declined  to  support 
the  application  for  appointment  of  Mr.  Short,  his  suc- 
cessor at  Paris,  an  intimate  friend  and  neighbor,  be- 
cause he  had  already  been  too  long  out  of  the  country.^ 

It  was  the  early  practice  of  American  officials  to  re- 
turn their  commissions  on  the  expiration  of  their  term 
of  service.  A  notable  instance  was  that  of  Washington, 
who  at  the  close  of  the  War  of  Independence  returned 
his  commission  as  general-in-chief  to  Congress  in  open 
session  in  1783.  The  archives  of  the  Department  of 
State  show  similar  instances.  But  in  1831  President 
Jackson,  when  John  Branch  resigned  as  secretary  of 
the  navy,  returned  to  him  his  commission,  saying,  "  It  is 
your  own  private  property,  and  by  no  means  to  be  con- 
sidered part  of  the  archives  of  the  government."  Since 
that  date  the  practice  of  returning  commissions  has  been 

1  September  30,  1790,  Secretary  Jefferson  wrote  Mr.  Short  at  Paris,  as 
follows  :  "  I  think  it  possible  that  it  will  be  established  into  a  maxim  of 
the  new  government  to  discontinue  its  foreign  servants  after  a  certain 
time  of  absence  from  their  own  country,  because  they  lose  in  time  that 
sufficient  degree  of  intimacy  with  its  circumstances  which  alone  can  en- 
able them  to  know  and  pursue  its  interests.  Seven  years  have  been  talked 
of.  Be  assured  it  is  for  your  happiness  and  success  to  return.  "  —  5  Jeffer- 
son's Writings,  242. 


THE  TERMINATION  OF  MISSIONS  177 

abandoned,  and  American  diplomatic  as  well  as  other 
officers  retain  in  their  own  possession  their  commissions. 

There  has  existed  a  custom  in  Europe,  rather  more 
infrequent  now  than  a  century  ago,  of  the  sovereign 
expressing  a  desire  for  the  retention  of  an  acceptable  or 
favorite  envoy  from  a  foreign  nation.  Instances  have 
occurred  where  the  monarch  has  manifested  such  a  wish 
to  the  President  of  the  United  States,  but  it  has  rarely 
had  any  other  effect  than  to  delay  for  a  short  time  the 
new  appointment,  if  brought  about  by  a  change  of 
parties  in  this  country. 

An  envoy,  if  retired  in  regular  order,  is  furnished  a 
letter  of  recall,  signed  by  the  President  and  addressed 
to  the  chief  of  the  state,  and  for  the  delivery  of  the  let- 
ter an  audience  is  granted  similar  to  that  at  his  presen- 
tation. John  Adams,  on  the  expiration  of  his  term  of 
service  as  minister  to  England  and  his  recall  by  Congress, 
was  greatly  embarrassed  because  of  the  failure  of  the 
receipt  of  the  customary  letter  of  recall,  which  Congress 
omitted  to  send  him.  He  was  likewise  accredited  to 
Holland,  and  in  order  to  take  leave  of  that  government 
he  resorted  to  the  expedient  of  addressing  a  letter  to 
the  Prince  of  Orange  and  to  Their  High  Mightinesses 
the  States  General,  inclosing  the  resolution  of  Congress 
which  terminated  his  mission,  and,  informing  them  of 
his  intended  return  to  the  United  States,  sent  them  his 
message  of  farewell.  The  Dutch  minister  for  foreign 
affairs  returned  these  documents  to  Mr.  Adams,  statins: 
that  they  could  not  be  delivered  to  their  destination,  as 
the  heads  of  the  States  should  be  addressed  directly  by 
Congress,  the  same  as  had  been  the  case  when  his  letter 


178  THE  PRACTICE  OF  DIPLOMACY 

of  credence  was  delivered ;  or,  as  Mr.  Adams  expressed 
it,  it  was  the  rule  of  all  courts  that  "  sovereign  should 
always  speak  to  sovereign." 

Mr.  Adams,  being  in  London,  was  more  fortunate  in 
securing  an  audience  of  George  III ;  but,  having  no 
letter  of  recall  to  deliver,  he  made  a  brief  formal  address 
of  farewell.  As  the  king's  speech  on  presentation  of  his 
letter  of  credence  has  already  been  quoted,  his  reply 
should  be  here  given.  Because  of  the  troubles  which 
had  arisen  over  the  enforcement  of  the  treaty  of  peace, 
the  king's  reply  on  this  occasion  was  in  marked  con- 
trast with  the  former  one.  He  said  :  "  Mr.  Adams,  you 
may,  with  great  truth,  assure  the  United  States  that 
whenever  they  shall  fulfill  the  treaty  on  their  part,  I, 
on  my  part,  will  fulfill  it  in  all  its  particulars.  As  to 
yourself,  I  am  sure  I  wish  you  a  safe  and  pleasant  voy- 
age, and  much  comfort  with  your  family  and  friends." 
After  this  curt  farewell,  Mr.  Adams  proceeded  to  take 
leave,  as  he  reports  to  Secretary  Jay,  "  of  the  Queen 
and  Princesses,  the  Cabinet  Ministers  and  corps  diplo- 
matique—  a  species  of  slavery,  more  of  which,  I  believe, 
has  fallen  to  my  share  than  ever  happened  before  to  a 
son  of  liberty."  ^ 

An  envoy  should,  if  possible,  remain  at  his  post  till 
his  successor  arrives,  in  which  case  his  farewell  audience 
usually  immediately  precedes  the  presentation  audience 
of  the  new  minister.  It  often  happens  that  the  envoy's 
retirement  occurs  when  the  chief  of  the  state  is  absent 
from  the  capital  and  not  readily  accessible.  In  that  case 
the  letter  of  recall  is  usually  delivered  by  his  successor. 

»  2  U.  S.  Dip.  Cor.  (1783-89)  827-832. 


THE   TERMINATION   OF  MISSIONS  179 

An  instance,  however,  is  noted  where  a  representative 
to  Austria,  after  having  left  his  post,  sent  his  letter  of 
recall  to  the  United  States  consul  at  Vienna,  by  whom 
it  was  delivered.  John  Randolph  resigned  his  post  as 
minister  at  St.  Petersburg,  and  en  route  home  delivered 
his  letter  of  recall  to  the  Russian  ambassador  in  London. 

The  recall  for  cause  of  a  minister  is  made  either  at 
the  request  of  the  government  to  which  he  is  accredited, 
or  by  his  own  government  upon  his  own  motion.  In  the 
first  case,  it  is  because  his  conduct  has  made  him  persona 
non  grata.  The  first  and  most  notable  instance  of  this 
as  applied  to  American  representatives  was  the  recall 
of  Gouverneur  Morris  from  Paris  at  the  instance  of  the 
French  government.  He  entered  upon  his  duties  in 
January,  1792,  and  was  a  witness  of  the  exciting  period 
which  marked  the  overthrow  of  the  monarchy,  the  exe- 
cution of  the  king,  the  rapid  succession  of  republican 
governments,  and  the  bloody  reign  of  terror.  No  min- 
ister could  have  so  conducted  himself  as  to  be  persona 
grata  to  all  these  rapidly  succeeding  governments,  but 
Mr.  Morris  was  especially  unfortunate,  and  far  from  cir- 
cumspect in  his  conduct.  He  had  warm  sympathy  for 
Louis  XVI,  and  allowed  his  feelings  to  lead  him  into  a 
plot  for  the  king's  escape ;  he  counseled  with  the  mon- 
archists and  did  not  conceal  his  disgust  at  the  bloody 
excesses  of  the  Republicans,  by  whom  he  was  regarded 
as  hostile.  Finally,  in  1794,  when  Washington  was 
forced  to  ask  for  the  recall  of  the  intemperate  French 
minister  Genet,  the  French  Directory  requested  the 
recall  of  Morris,  and  he  was  forced  to  leave  France. 

The  state  of  politics  at  the  time  made  it  very  difficult 


180  THE  PRACTICE  OF  DIPLOMACY 

for  American  ministers  in  France  to  pursue  an  entirely 
impartial  course.  It  is  known  that  Morris's  predecessor, 
Mr.  Jefferson,  while  minister,  was  in  consultation  with 
the  men  who  were  plotting  the  overthrow  of  the  mon- 
archy, and  that  his  successor,  James  Monroe,  was  in 
open  sympathy  with  the  Directory,  and  was  recalled  by 
President  Washington  for  his  partisan  conduct.^ 

Omitting  other  American  ministers  whose  recall  has 
been  demanded,  mention  should  be  made  of  the  case  of 
Mr.  C.  A.  Washburn,  who  served  as  minister  to  Para- 
guay from  1861  to  1868  with  acceptability  to  the  gov- 
ernment of  that  republic  until  the  advent  of  President 
Loj^ez,  who  during  one  of  the  periodical  disturbances 
assumed  the  role  of  dictator.  Washburn  had  given 
asylum  to  a  number  of  foreigners  and  some  of  the  mem- 
bers of  the  overthrown  government,  and  he  was  charged 
by  Lo]3ez  with  having  conspired  with  them.  A  corre- 
spondence ensued,  Lopez  threatened  to  imprison  Wash- 
burn, and  finally  ordered  him  to  leave  the  country. 
Fearing  for  his  safety,  the  government  of  the  United 
States  sent  a  naval  vessel  and  took  him  away.  A  new 
minister  was  sent  out,  accompanied  by  a  squadron  of 
the  navy,  proper  apologies  and  explanations  were  made 
by  Lopez,  and  friendly  relations  were  resumed.^ 

It  is  usually  sufficient  to  allege  that  a  minister  is 
persona  non  grata  to  secure  his  recall,  but  this  is  not 
always  the  case.    In  1891,  during  the  pendency  of  the 

1  Diplomatic  History  of  the  U.  S.  1789-1801,  by  W.  H.  Trescot,  chap. 
3 ;  Gouverneur  Morris,  by  T.  Roosevelt  (Statesmen  Series),  chap.  10 ; 
2  Diary  and  Correspondence  of  G.  Morris  (1888),  chap.  29. 

"  U.  S.  Dip.  Cor.  1868,  Paraguay  ;  American  Annual  Cyclopsedia, 
1808,  Paraguay;  History  of  Paraguay,  by  C.  A.  Washburn,  vol.  2. 


THE  TERMINATION  OF  MISSIONS  181 

asylum  cases  and  the  attack  upon  the  crew  of  the  United 
States  naval  vessel  Baltimore,  mentioned  in  the  last 
chapter,  the  Chilean  minister  in  Washington,  in  a  note 
to  the  secretary  of  state,  informed  him  that  he  had 
received  instructions  from  his  government  "  to  state  to 
you  that,  in  its  desire  to  cultivate  cordial  and  friendly 
relations  with  the  United  States,  the  continuance  of  Mr. 
Egan  as  minister  of  the  United  States  in  Santiago  is 
not  agreeable  to  it,"  and  asked  that  another  minister  be 
sent. 

On  the  next  day  Secretary  Blaine  dispatched  Mr.  Egan 
a  long  cablegram,  instructing  him  to  bring  to  the  atten- 
tion of  the  Chilean  government  the  President 's  view  of 
the  critical  relations  of  the  two  countries,  threatening  a 
suspension  of  all  diplomatic  relations ;  and,  informing 
the  minister  that  it  was  stated  he  was  not  persona  grata 
and  his  recall  had  been  requested,  he  was  directed  to 
say  to  the  Chilean  government  that  after  it  had  satisfied 
that  of  the  United  States  as  to  its  grave  complaints,  it 
would  be  time  to  consider  this  request.  Two  days  later, 
in  a  note  defending  the  Chilean  government  from  these 
complaints,  its  minister  in  Washington  referred  to  the 
request  for  Mr.  Egan's  recall,  adding  that  he  had  under- 
stood that  the  secretary  of  state  had  recognized  "  that 
the  Government  of  Chile  had  a  right  to  ask  that  a 
change  should  be  made."  To  this  Secretary  Blaine  re- 
plied :  "  Undoubtedly  she  has  that  right,  provided  she 
assigns  a  reason.  You  are  too  well  skilled  in  diplomatic 
usage  to  be  reminded  that  when  the  nation  is  pleased  to 
declare  that  a  minister  is  persona  non  grata,  she  is 
expected  to  assign  a  reason  therefor."    The  reason  that 


182  THE  PRACTICE  OF  DIPLOMACY 

would  have  been  alleged  grew  out  of  the  disturbed  state 
of  the  international  relations.  Happily  they  were  ad- 
justed in  a  friendly  manner,  and  nothing  more  was 
heard  of  a  desire  for  the  recall  of  the  American  min- 
ister.^ 

A  recent  case  of  recall  was  that  of  the  American  min- 
ister to  Cuba.  The  Cuban  government  complained  to 
the  secretary  of  state  of  his  action  in  informing  a  news- 
paper correspondent  of  the  substance  of  a  note  sent  by 
him  to  that  government,  but  did  not  make  a  specific 
request  for  recall.  The  President,  however,  deemed  it 
prudent  to  make  a  change,  and  he  was  replaced  by  an- 
other representative. 

The  recall  for  cause  of  its  own  ministers  by  the  gov- 
ernment of  the  United  States  has  frequently  occurred. 
The  first  and  one  of  the  most  prominent  cases  was  that 
of  James  Monroe,  minister  to  France,  which  has  already 
been  mentioned  elsewhere  by  me;^  as  also  that  of  John 
Lothrop  Motley,  twice  recalled  by  his  government.  ^ 

The  latest  instance  is  that  of  the  American  ambassador 
to  Austria,  whose  fault,  it  is  announced,  was  that  of 
allowing  his  wife,  a  devout  member  of  the  Roman  Catho- 
lic Church,  to  take  an  active  part  in  an  effort  to  secure 
from  the  Pope  the  appointment  of  an  American  as  a 
cardinal.  The  ambassador  was  absent  from  his  post  on 
leave  at  the  time  of  his  recall,  and  the  secretary  of 
state  took  the  unusual  and  summary  method  of  notifying 

1  U.  S.  For  Rel.  1891,  345,  308,  350,  352. 

^  Foster's  American  Diplomacy,  173  ;  Trescot's  Diplomatic  History, 
149. 

3  Foster's  American  Diplomacy,  431  ;  4  Memoirs  and  Letters  of  Charles 
Sumner,  Pierce ;  Mr.  Fish  and  the  Alabama  Claims,  by  J.  C.  B.  Davis,  1893. 


THE  TERMINATION  OF  MISSIONS  183 

the  Austrian  foreign  office  by  cable  "  that  the  President 
has  been  pleased  to  terminate  at  once,  and  without  any 
such  delay  as  would  be  incidental  to  the  transmission  of 
a  letter  of  recall  by  mail,  the  authority  of  his  ambassador 
to  represent  him ;  "  and  the  secretary  of  the  embassy  was 
named  as  charge.  The  ambassador  returned  immediately 
to  his  post,  but  was  not  permitted  to  resume  its  duties. 
Meanwhile  a  new  ambassador  had  been  appointed,  who, 
it  was  announced,  would  deliver  to  the  emperor  his  pre- 
decessor's letter  of  recall. 

It  is  an  accepted  rule  of  diplomatic  usage  that  every 
government  has  the  right  to  determine  for  itself  the 
acceptability  of  an  envoy  accredited  to  it,  and  that  if 
his  government  does  not  recall  him  upon  request,  the 
government  to  which  he  is  unacceptable  may  dismiss 
him.  Ordinarily  a  request  for  the  recall  of  a  minister  will 
at  once  be  granted.  The  United  States  has  had  frequent 
occasion  to  exercise  this  right.  An  examination  of  the 
leading  cases  will  prove  a  practical  illustration  of  the 
causes  which  justify  such  action.  The  first  of  these 
cases  to  occur  in  the  history  of  the  United  States  was 
that  of  M.  Moustier,  who  succeeded  M.  de  la  Luzerne  as 
minister  from  France  in  February,  1788.  He  soon  devel- 
oped disagreeable  qualities,  and  made  himself  unpopular 
with  all  classes  of  society.  John  Armstrong,  afterwards 
minister  to  France,  wrote  to  General  Gates  :  "  We  have 
a  French  minister  here  with  us,  and  if  France  had  wished 
to  destroy  the  little  remembrance  that  is  left  of  her  and 
her  exertions  in  our  behalf,  she  would  have  sent  just 
such  a  minister.^    He  early  quarreled  with  Mr.  Jay,  sec- 

^  1  Diary  and  Letters  of  Gouverneur  Morris,  20. 


184  THE  PRACTICE  OF  DIPLOMACY 

retary  for  foreign  affairs,  and  sought  to  conduct  his 
official  correspondence  direct  with  President  Washing- 
ton, but  this  the  latter  declined.^  He  raised  an  issue 
as  to  official  calls,  insisting  that  the  senators  should  make 
the  first  visit,  but  in  this  also  he  was  overruled.^  His 
conduct  became  so  offensive  that  within  ten  months 
after  his  arrival  Secretary  Jay  wrote  a  confidential  letter 
to  the  minister  in  Paris,  Mr.  Jefferson,  and  intrusted 
it  to  Gouverneur  Morris,  then  about  to  visit  Paris,  in- 
structing him  to  make  known  to  the  French  govern- 
ment the  offensive  character  of  Moustier's  conduct, 
both  political  and  moral,  and,  in  the  most  delicate 
way  possible,  without  wounding  the  susceptibilities  of 
that  government,  to  secure  his  recall.  Jefferson  felt  that 
the  case  was  of  such  a  delicate  nature  that  he  could  not 
approach  the  minister  of  foreign  affairs  officially,  and 
he  called  to  his  aid  Marquis  Lafayette,  and  made  known 
through  him  to  the  minister  Moustier's  conduct  and 
the  urofent  desire  of  our  ofovernment  for  his  recall.  The 
minister  saw  at  once  the  necessity  of  action,  but  hesi- 
tated to  make  a  public  recall.  He  solved  the  difficulty 
by  taking  advantage  of  a  loose  expression  in  one  of 
Moustier's  letters  which  might  be  construed  into  a  re- 
quest for  a  leave  of  absence.  Mr.  Jefferson  was  relieved 
to  be  able  to  write  Mr.  Jay  that  the  minister  would  have 
an  immediate  leave  of  absence,  which  would  soon  after 
become  a  recall  in  effect.  Moustier  left  America  on  leave, 
he  never  returned,  and  a  charge  ad  interim  filled  the 

1  11  Writings  of  Washington,  395;  4  Hildreth's  History  of  United 
States,  395. 

'  6  J.  Q.  Adams's  Memoirs,  441. 


THE  TERMINATION   OF  MISSIONS  185 

post  for  nearly  two  years,  until  1791,  when  a  new  min- 
ister was  appointed.^ 

The  second  instance  of  request  for  recall  of  foreign 
ministers  was  the  celebrated  case  of  Genet,  the  envoy 
of  the  revolutionary  government  of  France,  who  arrived 
in  the  United  States  in  the  presidency  of  Washington. 
The  next  was  that  of  Yrujo,  Spanish  minister,  who  was 
dismissed  under  aggravating  circumstances  in  1806. 
The  dismissal  of  Jackson,  British  minister,  in  1809 
arose  out  of  a  charge  made  by  him  against  the  secre- 
tary of  state  practically  of  falsehood  and  duplicity,  but 
it  was  also  connected  with  the  troubles  which  gave  rise 
to  the  war  of  1812.^  The  Jackson  incident  was  made 
the  subject  of  discussion  in  the  animated  interview  be- 
tween Secretary  Adams  and  Sir  Stratford  Canning  in 
1823,  from  which  quotations  have  already  been  made. 
Mr.  Adams  in  his  Diary  records  :  — 

"He  [Canning]  said,  hesitatingly,  that  he  did  not 
know  that  he  should  have  any  objection  to  write  me  a 
note  on  the  subject. 

"  I  replied  that  I  had  yesterday  felt  myself  the  more 
called  upon  to  insist  on  this,  because  he  had  advanced 
a  pretension  in  which  we  never  could  acquiesce,  and 
because  it  was  not  the  first  time  it  had  been  raised  by 
a  British  minister  here. 

"  He  asked,  with  great  apparent  emotion,  who  that 
minister  was.  I  answered,  'Mr.  Jackson.'  'And  you  got 
rid  of  him  ! '  said  Mr.  Canning,  in  a  tone  of  violent 
passion,  — '  and  you  got  rid  of  him  !  —  and  you  got 

1  2  U.  S.  Dip.  Cor.  (1783-89)  271. 

'  Foster's  American  Diplomacy,  156,  219,  221. 


186  THE  PRACTICE   OF  DIPLOMACY 

rid  of  him  ! '  This  repetition  of  the  same  words,  always 
in  the  same  tone,  was  with  pauses  of  a  few  seconds 
between  each  of  them,  as  if  for  a  reply. 

"  I  said,  ^  Sir,  my  reference  to  the  pretension  of  Mr. 
Jackson  was  not' —  Here  Mr.  Canning  interrupted 
me,  by  saying,  ^  If  you  think  by  that  reference  to  Mr. 
Jackson  I  am  to  be  intimidated  from  the  performance  of 
my  duty,  you  will  find  yourself  greatly  mistaken.' 

"  '  I  had  not,  sir,'  said  I,  ^  the  most  distant  intention 
of  intimidating  you  from  the  performance  of  your 
duty ;  nor  was  it  with  the  intention  of  alluding  to  any 
subsequent  occurrences  of  his  mission  ;  but '  —  Mr. 
Canning  interrupted  me  again  by  saying,  still  in  a  tone 
of  high  exasperation  :  — 

"  *  Let  me  tell  you,  sir,  that  your  reference  to  the  case 
of  Mr.  Jackson  is  exceedingly  offensive' 

"  *  I  do  not  know,'  said  I,  ^  whether  I  shall  be  able 
to  finish  what  I  intended  to  say,  under  such  continual 
interruptions.' 

"  He  intimated  by  a  bow  that  he  would  hear  me.  *  I 
was  observing,'  said  I,  '  that  in  referring  to  the  preten- 
sions of  Mr.  Jackson  to  take  offense  at  a  proposal  to 
continue  in  writing  a  discussion  commenced  by  oral 
conference,  I  had  no  intention  of  alluding  to  any  sub- 
sequent transactions  of  Mr.  Jackson  or  to  their  conse- 

' "  1 
quences. 

The  recall  of  the  French  minister  Poussin,  in  1849, 
was  occasioned  by  a  violent  correspondence  with  Secre- 
tary Clayton.  The  dismissal  of  Crampton,  British  min- 
ister, in  1855,  together  with  several  consuls,  was  caused 

I  5  J.  Q.  Adams's  Memoirs,  257. 


THE  TERMINATION  OF  MISSIONS  187 

by  the  violation  of  the  neutrahty  laws  in  enlistments  for 
the  British  army  during  the  Crimean  war.  The  British 
government  declined  to  act  upon  the  request  for  his 
recall  until  he  should  have  an  opportunity  to  vindicate 
his  conduct,  whereupon  his  passport  was  sent  him  and 
he  was  summarily  dismissed.  The  recall  of  Catacazy, 
Russian  minister,  in  1871,  resulted  from  publications  in 
the  newspapers  inspired  by  him,  attacking  the  President, 
and  by  his  disagreeable  personal  conduct.^ 

The  case  of  Lord  Sackville-West,  British  minister  in 
1888,  was  one  of  special  interest  because  it  involved  on 
the  part  of  the  minister  intervention  in  the  domestic 
politics  of  the  United  States.  During  the  presidential 
campaign  of  that  year  a  letter  marked  private  was 
mailed  in  California  to  Lord  Sackville,  purporting  to  be 
from  a  naturalized  citizen  of  EngHsh  birth,  asking  his 
advice  as  to  the  presidential  candidate  most  favorable 
to  British  interests  whom  he  and  his  fellow-countrymen 
should  support.  Lord  Sackville  in  his  reply,  likewise 
marked  private,  stated  "  that  any  political  party  which 
openly  favored  the  mother  country  would  lose  popu- 
larity," but  indicated  that  President  Cleveland's  election 
would  be  more  likely  to  promote  British  interests. 

The  letter  to  him  proved  to  be  a  decoy  to  entrap  the 
minister  into  an  expression  of  opinion,  and  his  reply 
was  at  once  published  in  the  newspapers  in  facsimile 
reproduction.  When  confronted  by  Secretary  Bayard 
with  his  letter,  Lord  Sackville  acknowledged  its  genu- 
ineness, but  stated  that  it  was  intended  to  be  private. 
He,  however,  submitted  to  newspaper  interviews  which 

*  Foster's  American  Diplomacy,  347,  432. 


188  THE   PRACTICE   OF  DIPLOMACY 

rather  aggravated  than  improved  the  statements  in  his 
letter.  Its  pubheation  was  within  two  weeks  of  the  close 
of  an  exciting  campaign,  and  it  was  felt  by  the  partisans 
of  Mr.  Cleveland  that  if  anything  was  to  be  done  to 
counteract  its  effects,  no  time  was  to  be  lost.  Secretary 
Bayard  cabled  Mr.  Phelps,  American  minister  in  London, 
expressing  "  the  confident  reliance  of  this  Government 
upon  the  action  of  Her  Majesty's  Government  in  the 
premises."  It  was  followed  the  next  day  by  another 
cablegram  stating  that  "  a  strong  public  sentiment  has 
been  aroused,  and  Lord  Salisbury  should  be  permitted 
as  speedily  as  possible  to  understand  the  necessity  of 
immediate  action." 

Two  days  later  Mr.  Phelps  telegraphed  that  Lord 
SaHsbury  declined  to  act  until  he  had  received  Lord 
Sackville's  explanation,  and  said  his  immediate  recall 
would  end  his  political  career,  which  would  not  neces- 
sarily be  the  case  if  he  were  dismissed  by  the  United 
States.  Acting  upon  this  intimation,  Secretary  Bayard, 
the  day  after  its  receipt,  sent  Lord  Sackville  a  note 
stating  that  it  had  been  brought  to  the  knowledge  of 
his  government  that  it  would  be  incompatible  with  the 
best  interests  of  both  governments  that  he  should  con- 
tinue any  longer  to  hold  his  ofi&cial  position  in  the 
United  States,  and  inclosed  him  his  passports. 

This  ended  Lord  Sackville's  public  career,  as  he 
returned  to  England  and  retired  to  private  life,  his  gov- 
ernment not  being  able  to  countenance  his  indiscretion 
by  continuing  him  in  the  diplomatic  service.  The 
London  "Times"  gave  utterance  to  the  public  sentiment 
of  Great  Britain  in  a  long  editorial,  in  which  it  said : 


THE  TERMINATION  OF  MISSIONS  189 

"  A  more  ridiculous  spectacle  has  rarely  been  witnessed 
in  any  civilized  country  than  the  flurried  and  unman- 
nerly haste  with  which  the  government  of  President 
Cleveland  has  endeavored  to  put  a  slight  on  this  coun- 
try, obviously  for  electioneering  purposes,  before  Her 
Majesty's  ministers  could  deal,  one  way  or  the  other, 
with  the  alleged  indiscretion  of  the  British  representa- 
tive at  Washington."  ^ 

The  last  case  to  be  noted  of  the  recall  of  foreign 
ministers  at  the  request  of  the  Washington  government 
is  that  of  Mr.  L.  A.  Thurston,  minister  of  the  Republic 
of  Hawaii.  The  treaty  for  the  annexation  of  Hawaii 
negfotiated  during:  the  Harrison  administration  had  been 
withdrawn  from  the  Senate  by  President  Cleveland ;  he 
had  sent  out  a  minister  to  Hawaii  with  instructions  to 
bring  about,  if  possible,  the  restoration  of  the  dethroned 
queen ;  and  the  government  of  the  republic  was  feeling 
quite  unfriendly  to  the  administration  at  Washington, 
in  which  feeling  its  minister  participated.  In  order  to 
secure  further  sympathy  and  support  in  the  United 
States,  Mr.  Thurston  gave  out  to  the  press  certain  items 
of  news  received  by  him  from  Honolulu  as  to  the  state 
of  affairs  in  the  islands,  which  reflected  severely  upon 
the  administration  of  President  Cleveland.  He  was  called 
to  account  for  it  by  Secretary  of  State  Gresham,  and 
he  admitted  that  he  had  allowed  correspondents  to  copy 
for  publication  certain  private  letters  received  by  him. 
For  this  conduct  Mr.  Thurston's  recall  was  suggested 
by  Secretary  Gresham  to  the  Hawaiian  government, 
which  acted  upon  the  suggestion  and  appointed  another 

1  For  correspondence,  H.  R.  Ex.  Doc.  150,  50th  Cong.,  2d  Sess. 


190  THE  PRACTICE   OF  DIPLOMACY 

minister  to  succeed  Mr.  Thurston,  who  had  voluntarily 
returned  to  Hawaii.^ 

The  practice  of  some  retired  American  ministers  of 
making  a  public  vindication  of  their  conduct,  in  cases 
where  they  have  differed  from  their  government,  is  to 
be  reprehended.  So  much  abuse  has  grown  out  of  the 
practice  that  the  department  in  its  Printed  Instructions 
has  forbidden  retiring  diplomatic  officers  from  retaining 
any  drafts  or  copies  of  official  correspondence.  A  min- 
ister should  trust  to  time  and  the  official  publication  of 
the  correspondence  for  his  vindication.  It  has  been  well 
said  that  a  diplomatist,  who  necessarily  assumes  confi- 
dential relations  to  his  government,  is  not  at  hberty  to 
dissolve  that  confidential  connection  for  his  own  vindica- 
tion. The  interests  of  the  country  have  suffered  more 
from  the  exposure  than  the  character  of  the  minister 
could  possibly  have  done  from  his  silence.  Distinguished 
instances  of  this  indiscretion  in  our  history  have  been 
the  vindication  by  Mr.  Monroe  of  his  conduct  in  France, 
and  the  controversy  of  Lewis  Cass  on  his  return  from 
Paris  with  Secretary  Webster.  Other  indiscretions  of 
this  character  on  the  part  of  returned  ministers  might 
be  cited. 

There  is  no  doubt  that  such  conduct  is  immoral  in 
political  ethics  and  to  be  severely  condemned,  and  yet  in 
European  diplomacy  there  are  a  number  of  conspicuous 
instances  of  such  conduct.  The  most  recent  is  that  of 
M.  Delcasse,  French  minister  of  foreign  affairs,  who, 
being  forced  out  of  the  cabinet,  took  his  revenge  by 
publishing  in  a  Paris  journal  full  details  of  the  confiden- 

1  U.  S.  For.  Rel.  (1895)  276. 


THE  TERMINATION  OF  MISSIONS  191 

tial  understanding  which  had  been  reached  between  the 
French  and  British  governments  in  respect  to  Morocco 
and  the  proposed  hostile  combination  against  Germany. 
Bismarck  after  his  fall  from  power  made  revelations  of 
the  secrets  of  the  German  chancellery  in  the  highest 
degree  reprehensible.  The  case  of  Count  Arnim,  Ger- 
man ambassador  in  Paris,  was  a  notorious  breach  of 
diplomatic  confidence  which  led  to  his  arrest  and  con- 
demnation by  the  German  tribunals.  In  all  these  in- 
stances the  reputation  of  men  high  in  pubHc  life  was 
stained  by  their  betrayals  of  state  secrets. 


CHAPTER  X 

OTHER   DIPLOMATIC    OFFICIALS 

In  addition  to  the  four  grades  of  diplomatic  agents  re- 
cognized by  the  Rules  of  Vienna,  representatives  of  a 
government  are  frequently  sent  abroad  on  missions  of 
various  kinds,  some  of  whom  possess  diplomatic  func- 
tions and  privileges.  Others  are  sent  in  a  purely  private 
and  unofficial  character  so  far  as  their  relation  to  foreign 
governments  is  concerned.  A  review  of  some  of  the 
more  important  of  these  missions  appointed  by  the 
United  States  will  indicate  the  nature  of  their  functions 
and  their  relation  to  diplomacy. 

The  first  diplomatic  commission  appointed  by  the 
United  States  was  named  in  the  year  of  the  declaration 
of  independence,  1776,  and  was  composed  of  Benjamin 
Franklin,  Silas  Deane,  and  Thomas  Jefferson.  The 
latter  not  being  able  to  accept,  his  place  was  filled  by 
Arthur  Lee.  This  commission  was  appointed  by  the 
Continental  Congress  "  to  take  charge  of  American 
affairs  in  Europe,  and  to  procure  a  treaty  of  alliance 
with  France."  Of  this  class  were  the  commissioners  to 
negotiate  peace  and  conclude  war.  The  first  peace 
commission  of  the  United  States  was  that  which  met  a 
similar  British  commission  in  Paris,  in  1782-83,  to 
negotiate  for  independence.  This  commission  consisted 
of  John  Adams,  Benjamin  Franklin,  John  Jay,  Henry 


OTHER  DIPLOMATIC  OFFICIALS  193 

Laurens,  and  Thomas  Jefferson.  The  latter  was  not 
able  to  act,  and  Mr.  Laurens,  being  captured  en  route, 
arrived  only  in  time  to  join  in  signing  the  treaty.  The 
commissioners  who  assembled  at  Ghent  in  1814  to  con- 
clude the  war  of  1812  with  Great  Britain  were  John 
Quincy  Adams,  James  A.  Bayard,  Henry  Clay,  Albert 
Gallatin,  and  Jonathan  Russell.  Our  third  foreign  war 
was  with  Mexico,  and  a  single  commissioner,  Nicholas 
P.  Trist,  negotiated  the  treaty  which  adjusted  the  terms 
of  peace.  Our  fourth  and  last  foreign  war,  that  with 
Spain,  was  concluded  by  a  commission  of  five  promi- 
nent citizens,  who  negotiated  the  treaty  of  peace  at 
Paris,  1898,  consisting  of  W.  R.  Day,  C.  K.  Davis, 
W.  P.  Frye,  George  Gray,  and  Whitelaw  Reid. 

During  our  history  we  have  had  several  important 
commissions  of  a  similar  character  appointed  under  pecul- 
iar exigencies  for  the  adjustment  of  acute  international 
questions.  Of  these  may  be  named  the  two  commissions 
of  1797  and  1799  sent  to  France  to  avert  the  war 
which  was  most  imminent,  the  first  composed  of  C.  C. 
Pinckney  of  South  Carolina,  John  Marshall  of  Virginia, 
and  Elbridge  Gerry  of  Massachusetts,  and  the  second  of 
Chief  Justice  Ellsworth,  W.  Vans  Murray,  minister  to 
the  Netherlands,  and  "W.  R.  Davie  of  North  Carolina, 
among  the  leading  statesmen  of  their  day.  Of  a  like 
character  and  object  was  the  joint  high  commission 
which  assembled  in  Washington  in  1871,  to  adjust  the 
heated  and  delicate  questions  which  had  arisen  with 
England,  having  their  origin  in  the  Civil  War.  The  Amer- 
ican members  of  the  commission  were  Secretary  Fish, 
General   Schenck,   minister  to   Great   Britain,  Justice 


194  THE  PRACTICE  OF  DIPLOMACY 

Nelson  of  the  Supreme  Court,  and  Attorney-General 
Williams.  A  similar  commission  was  that  which  met  in 
Washington  in  1888  to  undertake  the  settlement  of  the 
long-pending  and  perplexing  question  of  the  northeast 
(Canadian)  fisheries,  composed  on  the  part  of  the  United 
States  of  Secretary  Bayard,  Judge  Putnam,  and  Dr. 
Angell,  and  on  the  part  of  Great  Britain  of  Joseph 
Chamberlain,  the  British  minister  to  the  United  States, 
and  the  Canadian  prime  minister.  The  last  commission 
of  this  character  was  the  joint  high  commission  of  1898, 
for  the  adjustment  of  pending  questions  with  Canada, 
composed  on  the  part  of  the  United  States  and  Great 
Britain  of  six  members  each. 

In  all  these  cases  the  commissioners  were  named  in 
their  credentials  as  envoys  and  ministers  plenipotentiary 
or  as  commissioners  plenipotentiary,  and  were  accorded 
the  diplomatic  privileges  of  that  rank.  In  their  relation 
to  each  other  they  took  rank  in  the  conferences  in  the 
order  in  which  they  were  named  by  the  President. 

Early  in  the  history  of  the  United  States  the  ques- 
tion was  raised  as  to  the  immunities  enjoyed  by  commis- 
sioners sent  abroad  in  execution  of  treaty  stipulations 
or  on  other  public  business.  In  1796  Messrs.  Gore  and 
Pinkney  were  sent  to  London  to  act  as  commission- 
ers under  the  Jay  treaty  of  1794  to  adjudicate  claims. 
On  arrival  they  were  required  to  pay  duties  at  the  cus- 
tom house,  and  their  houses  were  visited  by  officials  for 
militia  register  and  tax  purposes.  They  reported  the 
facts  to  the  American  minister,  Mr.  King,  claiming  that 
under  the  law  of  nations  they  were  entitled  to  exemp- 
tion from  such  demands. 


OTHER  DIPLOMATIC  OFFICIALS  195 

The  minister  brought  the  subject  to  the  attention 
of  the  foreign  office,  and  the  latter  took  the  opinion  of 
the  law  officers  of  the  government,  who  were  the  emi- 
nent jurists  Lords  Stowell,  Eldon,  and  Redesdale.  They 
held  that,  as  they  did  not  have  letters  of  credence  to  the 
King,  they  did  not  possess  the  character  of  diplomatic 
officials,  and  hence  were  not  under  British  law  entitled 
to  the  immunities  of  the  latter.^  This  strict  construction 
has  not  been  followed,  however,  in  latter  years,  and  as 
a  matter  of  international  comity  diplomatic  courtesies 
are  extended  to  such  officials. 

The  government  of  the  United  States  has  several 
times  named  special  ministers  plenipotentiary  or  com- 
missioners to  negotiate  treaties  or  to  discharge  other 
special  missions  at  capitals  where  American  ministers 
are  already  accredited.  They  have  been  usually  asso- 
ciated in  their  duties  with  the  ministers  resident,  but 
there  is  one  notable  exception  to  this  rule,  that  of  John 
Jay  in  1794  to  London.  Our  relations  with  Great 
Britain  were  in  such  a  critical  condition  that  President 
Washington  felt  it  necessary  to  make  an  extraordinary 
effort  to  bring  about  a  peaceful  solution.  Although 
there  was  an  able  and  honored  representative  in  London, 
he  appointed  John  Jay,  at  the  time  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  a  sole  plenipo- 
tentiary to  King  George  III,  and  clothed  him  with  full 
powers  to  negotiate  on  all  pending  questions.  James 
Monroe  was  named  by  Jefferson  in  1803  joint  pleni- 
potentiary with  Livingston,  the  minister  at  Paris,  to 
negotiate  for  the  cession  of  Louisiana ;  and  when  Monroe 

^  History  and  Digest  of  International  Arbitrations,  John  B.  Moore,  345. 


196  THE  PRACTICE  OF  DIPLOMACY 

himself  was  minister  in  London,  in  1806,  William  Pink- 
ney,  of  Maryland,  was  sent  as  minister  plenipotentiary, 
associated  with  him,  to  bring  about  an  adjustment  of 
our  differences  with  Great  Britain.^ 

In  1818  Albert  Gallatin,  then  minister  in  Paris,  was 
sent  to  London  to  negotiate  a  treaty  in  conjunction  with 
the  resident  minister,  Richard  Rush.  In  none  of  these 
instances  was  the  coming  of  a  special  negotiator  looked 
upon  with  gratification  by  the  resident  minister.  In  the 
case  of  Mr.  Jay  the  minister,  Mr.  Pinkney,  confessed 
to  "an  unpleasant  feeHng  on  the  occasion,"  but  he 
cheerfully  rendered  all  possible  assistance.  Messrs.  Liv- 
ingston and  Monroe  had  a  sharp  controversy  over  the 
merits  of  their  respective  services,  and  when  the  situ- 
ation was  reversed  in  London  Monroe  was  chagrined  at 
the  coming  of  Mr.  Pinkney.  Gallatin  and  Rush  were 
intimate  friends  and  negotiated  in  harmony  and  suc- 
cessfully, but  the  biographer  records  that  for  the  resi- 
dent minister  it  is  "always  a  somewhat  delicate  act,  the 
intrusion  of  a  third  person  in  his  relations  with  the 
government  to  which  he  is  accredited."  ^ 

Among  other  special  missions  of  this  character  may 
be  mentioned  that  of  General  Schenck,  when  minister 
to  Brazil,  appointed  in  1854,  in  conjunction  with  the 
American  minister  at  Buenos  Ayres,  to  negotiate  trea- 
ties of  commerce,  etc.,  with  the  Argentine  Republic ; 
General  Sickles,  in  1867,  sent  to  Colombia  to  secure 
an  agreement  jointly  with  the  resident  minister,  as  to 
the  passage  of  troops  across  the  Isthmus  of  Panama; 

^  Foster's  American  Diplomacy,  160,  195,  205. 

a  Life  of  Albert  Gallatin,  by  Henry  Adams  (1879),  569. 


OTHER  DIPLOMATIC   OFFICIALS  197 

and  Caleb  Gushing,  to  the  same  country  in  1868,  as  to 
the  isthmus  canal. 

As  indicating  the  character  of  the  duties  American 
representatives  abroad  are  sometimes  called  upon  to  dis- 
charge, it  may  be  noted  that  George  W.  Erving  was 
appointed  special  minister  to  Denmark  in  1811,  charged 
with  the  subject  of  the  spoliations  committed  under  the 
Danish  flag  on  American  commerce;  and  associated 
with  him  were  the  consul  at  Gopenhagen,  the  minister 
to  Russia,  and  the  charge  to  the  Netherlands.  Other 
similar  conferences  might  be  cited.  Probably  the  most 
famous  of  such  conferences  was  that  held  at  Ostend  in 
1854  between  Mr.  Buchanan,  minister  to  Great  Britain, 
Mr.  Mason,  minister  to  France,  and  Mr.  Soule,  minister 
to  Spain,  to  concert  a  plan  for  the  acquisition  by  the 
United  States  of  the  island  of  Guba,  resulting  in  the 
fruitless  "  Ostend  manifesto."  ^ 

A  somewhat  unusual  diplomatic  mission  was  that 
intrusted  by  President  Fillmore  to  Gommodore  Aulick 
in  1851  and  transferred  to  Gommodore  Perry  in  1852, 
who,  going  with  his  fleet  and  bearing  a  commission  as 
special  plenipotentiary  to  Japan,  negotiated  in  1854  the 
first  treaty  ever  made  with  that  country,  which  resulted 
in  opening  it  to  the  world.  A  similar  mission  and 
honor  was  conferred  on  another  officer  of  the  navy, 
Gommodore  Shufeldt,  who  in  1882  made  the  first  treaty 
with  Korea,  which  likewise  opened  that  country  to  for- 
eign intercourse.  In  this  case,  also,  the  negotiator  was 
attended  with  a  naval  display.  Other  diplomatic  missions 
have  been  intrusted  to  officers  of  the  navy,  such  as  that 

^  Foster's  American  Diplomacy,  345. 


198  THE  PRACTICE  OF  DIPLOMACY 

of  Captain  Fox,  assistant  secretary  of  the  navy,  who 
bore  to  the  Emperor  of  Russia  in  1866,  in  one  of  the 
iron-clad  ships  of  our  Civil  War,  the  joint  resolution  of 
Congress  congratulating  the  Czar  on  his  escape  from 
assassination,  a  service  which  would  have  been  performed 
in  the  ordinary  way  by  the  resident  minister,  except 
that  the  friendly  interest  shown  by  Russia  to  the  Union 
called  for  special  recognition. 

Commissions  have  been  created  of  a  quasi-diploma- 
tic character,  but  without  a  diplomatic  standing,  and 
bearing  no  credentials  to  a  foreign  government.  Of  this 
class  was  the  commission  composed  of  three  citizens, 
appointed  by  President  Monroe  in  1817,  to  inquire  into 
the  condition  of  the  South  American  colonies  then  under 
revolt  from  Spain,  with  a  view  to  a  decision  as  to  the 
recognition  of  their  independence.^  Similar  in  character 
was  that  appointed  by  President  Grant  in  1871,  to  visit 
San  Domingo,  after  the  negotiation  of  the  treaty  of  an- 
nexation, to  inquire  and  report  on  the  condition  of  the 
country  and  the  sentiments  of  the  people. 

The  government  has  at  various  times  appointed  spe- 
cial agents,  sometimes  of  a  secret  character,  to  go  abroad 
on  special  missions  or  to  accomplish  a  particular  duty. 
They  seldom  have  any  credentials,  and  are  usually  with- 
out any  diplomatic  standing.  One  of  the  first  of  this 
character  was  the  appointment  of  Gouverneur  Morris 
as  private  agent  to  London  in  1789.  John  Adams  had 
closed  his  mission  under  unfavorable  circumstances,  and 
as  there  was  no  disposition  manifested  by  Great  Britain 

^  For  report  of  South  American  Commission,  4  American  State  Papers, 
For.  Rel.  217. 


OTHER  DIPLOMATIC  OFFICIALS  199 

to  send  a  minister  to  the  United  States,  President  Wash- 
ington was  not  willing  to  name  a  successor  in  the  post. 
The  relations  were,  however,  of  such  a  grave  character 
that  he  felt  it  to  be  his  duty  to  make  an  effort  to  reach 
a  better  understanding.  He  therefore  sent  Mr.  Morris, 
then  in  Europe,  a  letter  accrediting  him  as  a  private 
agent,  authorizing  him,  but  "  without  giving  him  any 
definite  character,  to  enter  informally  into  conferences 
.  .  .  with  the  court  of  London."  Mr.  Morris  held  con- 
ferences with  the  prime  minister  and  the  secretary  for 
foreign  affairs,  and  exchanged  notes  with  the  latter,  but 
was  unsuccessful  in  his  efforts.^ 

One  of  the  most  noted  instances  of  the  class  of  private 
agents  was  the  designation  of  A.  Dudley  Mann  by  Pre- 
sident Taylor  in  1849,  under  secret  instructions  to  pro- 
ceed to  Hungary  for  the  purpose  of  obtaining  accurate 
information,  with  a  view  to  the  acknowledgment  of  its  in- 
dependence. Coming  under  this  class  may  be  mentioned 
the  mission  of  Commissioner  Blount  sent  by  President 
Cleveland  to  Hawaii  in  1893  "  to  report  on  the  present 
status  of  affaii'S  in  that  country."  His  was  a  unique 
mission  in  that,  while  there  was  in  Hawaii  a  regularly 
accredited  American  minister,  Mr.  Blount  bore  letters 
of  credence  to  the  president  of  that  republic,  and  was 
given  "paramount  authority"  in  all  matters  touching 
the  relations  of  the  government  of  the  United  States 
to  the  government  of  the  island  and  the  protection  of 
American  citizens.  The  resident  minister  was  notified 
by  the  secretary  of  state  that  while  Mr.  Blount  was 
"  paramount,"  he  was  "  requested  to  continue  until  fur- 

1  1  Am.  State  Papers,  For.  Rel.  121. 


200  THE  PRACTICE  OF  DIPLOMACY 

ther  notice  in  the  performance  of  your  [liis]  official 
functions,  as  far  as  they  may  not  be  inconsistent  with 
the  special  powers  confided  to  Mr.  Blount."  As  might 
have  been  anticipated,  this  relation  was  soon  terminated 
by  the  resident  minister  vacating  his  office.^ 

Another  case  occurred  in  1886  with  similar  results. 
A  special  commissioner  was  appointed  by  the  President 
to  investigate  the  arrest  of  A.  K.  Cutting  in  Mexico, 
although  the  American  minister  was  a  person  of  ability 
and  experience,  and,  being  a  well-trained  lawyer,  was 
well  fitted  to  deal  with  the  case,  which  was  entirely  of 
a  legal  character.^  The  special  commissioner,  on  his 
arrival  in  the  City  of  Mexico,  assumed  an  air  of  consider- 
able importance  and  secured  notoriety  in  the  newspapers. 
The  minister,  Mr.  H.  R.  Jackson,  affronted  at  his  treat- 
ment, resigned  his  post  and  returned  home.  The  Senate 
requested  the  correspondence  on  his  resignation,  but 
the  President  declined  to  give  it,  as  not  compatible  with 
the  interests  of  the  public  service.^ 

The  last  of  the  non-diplomatic  agents  to  be  noticed 
are  those  who  were  sent  to  Europe  during  our  Civil 
War.  In  October,  1861,  Secretary  Seward,  with  the 
approval  of  the  President  and  cabinet,  dispatched  Arch- 
bishop Hughes,  Bishop  Mcllvaine,  and  Thurlow  Weed 
on  a  confidential  and  secret  mission,  for  the  purpose 
of  influencing,  as  far  as  possible,  public  sentiment  in 
respect  to  the  war.     During  the  same  period  W.  M. 

^  S,  Ex.  Doc.  45,  52d  Cong.,  1st  Sess.  1276. 

'  For  correspondence  as  to  the  Cutting  case,  U.  S.  For.  Rel.  1886, 1887, 
1888,  Mexico. 

»  S.  Ex.  Doc.  109,  49th  Cong.,  2d  Sess.  2. 


OTHER  DIPLOMATIC   OFFICIALS  201 

Evarts  was  sent  to  London  to  aid  Mr.  Adams,  the  min- 
ister to  Great  Britain,  in  the  legal  questions  growing 
out  of  the  war;  and  R.  J.  Walker,  former  secretary 
of  the  treasury,  was  also  dispatched  to  Europe  to  assist 
in  the  financial  operations  of  the  government.^ 

The  manner  of  the  appointment  of  these  commission- 
ers and  agents  and  their  compensation,  at  various  times, 
have  been  the  subject  of  discussion  in  Congress  and  the 
press.  An  examination  of  the  facts  in  the  cases  noticed 
will  show  that  the  practice  of  the  executive  department 
of  the  government  as  to  nominations  has  not  been  uni- 
form. The  names  of  the  commissioners  appointed  to 
adjust  the  difference  with  France  in  1797  and  in  1799, 
as  also  those  on  the  peace  commission  of  1814,  were 
submitted  to  the  Senate  for  confirmation.  The  name  of 
the  peace  commissioner  to  Mexico  in  1849  and  those 
of  the  Spanish  peace  commissioners  of  1898  were  not 
sent  to  the  Senate.  Those  of  the  South  American 
commissioners  of  1817  and  those  of  the  San  Domingo 
commissioners  in  1871  were  not  sent  to  the  Senate. 
That  body  was  asked  by  the  President  to  confirm  the 
nomination  of  the  members  of  the  joint  high  com- 
mission of  1871,  but  not  that  of  1888  (fisheries),  nor 
of  the  joint  high  commission  (Canadian)  of  1898. 

As  to  special  plenipotentiaries,  Mr.  Monroe,  sent  to 
Paris  in  1803,  and  Mr.  Pinkney  to  London  in  1806, 
were  both  confirmed  by  the  Senate.  The  names  of  Com- 
modores Aulick,  Perry,  and  Schufeldt  were  not  sent  to 
that  body. 

1  As  to  Mann's  mission  and  the  civil  war  agents,  see  Foster's  American 
Diplomacy,  329,  396. 


202  THE  PRACTICE  OF  DIPLOMACY 

The  Senate,  in  advising  the  ratification  of  the  treaty 
negotiated  by  Commodore  Shufeldt  with  Korea,  at- 
tached to  it  a  declaration  that  it  did  "  not  admit  or 
acquiesce  in  any  right  or  constitutional  power  in  the 
President  to  authorize  or  empower  any  person  to  nego- 
tiate treaties  or  carry  on  diplomatic  negotiations  with 
any  foreign  power,  unless  such  person  shall  have  been 
appointed  for  such  purpose  or  clothed  with  such  power 
by  and  with  the  advice  and  consent  of  the  Senate."  ^ 

The  practice  has  been  to  appoint  arbitrators  and  agents 
of  international  commissions  without  senatorial  confir- 
mation. 

An  item  of  $30,000  was  inserted  in  the  diplomatic 
appropriation  bill  to  meet  the  expenses  of  the  South 
American  commission  of  1817,  but  it  was  objected  to 
and  stricken  out  in  the  House  on  the  ground  that  the 
appointment  of  the  commissioners  was  not  submitted  to 
the  Senate  for  confirmation,  and  that  the  commission  was 
unauthorized.  Henry  Clay  was  especially  conspicuous 
in  criticising  the  action  of  the  President.  To  avoid  es- 
tablishing a  precedent  for  paying  persons  unofficially 
appointed  by  a  specific  appropriation,  it  was  finally  agreed 
that  the  sum  asked  for  should  be  allowed  in  the  shape 
of  a  contingent  fund.^ 

The  question  of  the  confirmation  of  a  special  commis- 
sioner was  again  raised  during  the  investigation  of 
Hawaiian  affairs  in  1894  by  the  senate  committee  on 
foreign  relations.    The  chairman  of  the  committee,  Mr. 

*  Compilation  of  Treaties  in  Force,  1904,  495. 

2  3  History  of  the  United  States,  Schouler,  28,32  ;  1  Wharton's  Digest, 
583. 


OTHER  DIPLOMATIC  OFFICIALS  203 

Morgan,  in  his  report,  said :  "  A  question  has  been  made 
as  to  the  riofht  of  the  President  of  the  United  States  to  dis- 
patch  Mr.  Blount  to  Hawaii  as  his  personal  representa- 
tive for  the  purpose  of  seeking  the  further  information 
which  the  President  believed  was  necessary  in  order  to 
arrive  at  a  just  conclusion  regarding  the  state  of  affairs 
in  Hawaii.  Many  precedents  could  be  quoted  to  show 
that  such  power  has  been  exercised  by  the  President  on 
various  occasions  without  dissent  on  the  part  of  Con- 
gress. These  precedents  also  show  that  the  Senate  of 
the  United  States,  though  in  session,  need  not  be  con- 
sulted as  to  the  appointment  of  such  agents."  The 
views  of  the  minority,  signed  by  senators  Sherman,  Frye, 
Dolph,  and  C.  K.  Davis,  held  "  that  the  appointment, 
without  the  advice  and  consent  of  the  Senate,  of  Hon. 
James  H.  Blount  as  *  special  commissioner'  to  the 
Hawaiian  Government  under  letters  of  credence  and 
those  of  instruction,  which  declared  that  ^  in  all  matters 
affectincr  relations  with  the  Government  of  the  Hawaiian 
Islands  his  authority  is  paramount,'  was  an  unconstitu- 
tional act,  in  that  such  appointee,  Mr.  Blount,  was  never 
nominated  to  the  Senate,  but  was  appointed  without  its 
advice  and  consent,  although  that  body  was  in  session 
when  such  appointment  was  made."  ^  This  review 
shows  that  the  earlier  practice,  by  those  nearest  to  the 
framers  of  the  Constitution,  was  to  submit  diplomatic 
appointments  to  the  Senate  for  confirmation ;  but  the 
weight  of  precedents  seems  to  sustain  the  right  of  the 
President  to  make  appointment  of  special  commissioners 
and  plenipotentiaries  independent  of  the  Senate. 

1  S.  Report,  53d  Cong.,  2(1  Sess.  25,  33. 


204  THE  PRACTICE  OF  DIPLOMACY 

It  has  frequently  happened  that  pubHc  officers  have 
been  appointed  to  serve  on  international  commissions  or 
as  special  plenipotentiaries.  It  raises  the  question  whether 
compensation  for  such  service  can  properly  be  paid 
to  them.  The  question  first  arose  in  the  case  of  Mr. 
Jay,  who  held  the  office  of  Chief  Justice  of  the  Supreme 
Court  of  the  United  States  when  he  was  appointed  and 
discharged  the  duties  of  special  envoy  to  Great  Britain. 
During  that  service  he  was  paid  his  salary  as  chief 
justice  and  his  actual  expenses  on  the  mission.^ 

The  question  again  arose  on  account  of  the  services  of 
Chief  Justice  Ellsworth,  who  was  a  member  of  the  com- 
mission to  France  of  1799.  He  appears  to  have  made 
claims  to  compensation  for  the  two  duties.  Secretary  of 
the  Treasury  Gallatin  held  that  he  was  "  not  entitled  to 
receive  at  the  same  time  two  salaries  for  the  two  offices 
of  chief  justice  and  envoy  extraordinary.  ...  It  follows 
that  the  mode  in  which  the  account  should  be  presented 
and  settled  is  that  adopted  in  the  case  of  Mr.  Jay's 
mission."  ^ 

1  8  Jefferson's  Writings,  130. 

2  The  full  opinion  of  the  secretary  is  as  follows  :  — 

Treasury  Department,  June  11,  1801. 

Sir  :  Upon  an  examination  of  Mr.  Ellsworth's  letter  and  account,  it 
appears  to  be  the  Comptroller's  opinion,  and  I  coincide  with  him,  that 
Mr.  Ellsworth  is  not  entitled  to  receive  at  the  same  time  two  salaries  for 
the  two  offices  of  Chief  Justice  and  Envoy  Extraordinary  ;  that  from  the 
nature  of  the  office  of  Chief  Justice,  so  long  as  he  did  not  resign  it,  or  by 
any  inability  vacate  it,  the  salary  must  necessarily  according  to  the  Con- 
stitution and  law  be  paid  to  him,  and  that  his  having  received  that  salary 
till  after  his  resignation  amounts  to  an  election  on  his  part  of  taking  it. 

Should  that  opinion  be  correct,  it  follows  that  the  mode  in  which  the 
account  should  be  presented  and  settled  is  that  adopted  in  the  case  of 
Mr.  Jay's  mission.    But  perhaps  it  would  be  better  in  the  first  place  to 


OTHER  DIPLOMATIC  OFFICIALS  205 

The  question  was  finally  put  at  rest  by  the  statute  of 
March  3,  1839  (Rev.  Stat.  sec.  1756),  which  prohibits 
all  officers  in  any  branch  of  the  public  service  from 
receiving  any  additional  pay  or  allowance  for  any  other 
service  whatever.  It  is  the  practice  of  the  government 
to  allow  public  officers  who  serve  on  international  com- 
missions or  on  special  diplomatic  missions  their  actual 
expenses,  a  fixed  per  diem,  or  a  specific  sum  to  meet 
their  outlay  on  such  duty. 

It  is  usual  to  secure  from  Congress  a  lump  sum 
appropriation  to  cover  the  expenses  of  international 
commissions,  which  is  disbursed  by  the  Department  of 
State.  The  secretary  of  state  decides  upon  the  compen- 
sation or  allowances  to  the  various  members  of  such 
bodies.  In  cases  of  emergency,  or  when  the  expense 
is  not  great,  it  is  met  from  the  contingent  fund  of  the 
department. 

The  persons  who  constitute  or  are  attached  to  an 
embassy  or  mission  of  the  United  States,  in  addition  to 
the  ambassador  or  minister,  may  be  enumerated  as  sec- 
retaries, naval  and  military  attaches,  clerks,  interpreters 
or  dragomen,  and  occasional  bearers  of  dispatches.  The 
term  "  the  Secretary "  is  understood  to  refer  to  the 
actual  first  secretary,  and  the  others  are  designated  as 
second  and  third  secretaries.  The  manner  in  which 
secretaries  are  appointed  and  admitted  to  the  service 
has  already  been    described. 

suggest  those  ideas  to  Mr,  Ellsworth  before  a  formal  opinion  is  given  by 

the  accounting  officers  on  his  account. 

I  have  the  honor  to  be,  very  respectfully,  sir,  your  obedient  servant, 

Albert  Gallatin. 
The  Secbbtabt  of  Statb. 


206  THE  PRACTICE  OF  DIPLOMACY 

Under  the  Printed  Instructions  of  the  department  and 
the  letter  which  accompanies  the  notice  of  appointment, 
it  is  made  the  duty  of  the  secretary  to  transcribe  and 
dispatch  the  official  communications  of  the  mission ;  to 
record  or  copy  them  in  suitable  books;  to  make  the 
necessary  classification  and  indexing ;  and  to  have  the 
general  charge  and  care  of  the  archives  and  property  of 
the  mission.  He  is  habitually  to  attend  the  office  of  the 
mission  during  the  usual  hours  of  business,  and  in  a 
general  way  be  subordinate  to  the  head  of  the  mission, 
although  it  is  recognized  that  the  general  duties  of  the 
office  are  from  their  nature  scarcely  susceptible  of  a 
minute  definition,  and  must  in  a  great  measure  be  deter- 
mined by  circumstances.  The  duties  as  described  by 
the  regulations  of  the  British  diplomatic  service,  which 
may  well  be  applied  to  the  iJnited  States,  are  as  follows: 
"  The  Secretary  of  Embassy  or  Legation  must  be  deemed 
to  hold,  as  regards  the  Chief  of  the  Mission,  the  same 
position  which  our  Under  Secretary  of  State  holds  as 
regards  the  Secretary  of  State,  and  therefore  the  whole 
public  business  of  the  Embassy  or  Mission  should  pass 
through  his  hands,  and,  subject  to  the  orders  of  the 
Chief,  should  be  carried  on  under  his  superintendence. 
The  public  and  official  dispatches  and  papers  will,  if  not 
opened  by  the  Ambassador  or  Minister  himself  upon 
their  arrival,  reach  him  through  the  Secretary ;  and  the 
direction  of  the  Chief  in  regard  to  all  matters  of  public 
business  will  pass  through  the  Secretary,  and  be  executed 
under  his  superintendence  and  control." 

From  the  fact  that  the  first  secretary  of  an  embassy 
or  legation  of  the  United  States  is  required  to  take  the 


OTHER  DIPLOMATIC   OFFICIALS  207 

place  of  the  ambassador  or  minister  in  the  latter's 
absence,  he  should  possess  the  intellectual  and  social 
qualifications  of  his  chief ;  and  hence  he  should  make 
himself  acquainted  with  the  policy  and  public  men  of 
the  country  of  his  residence,  and  maintain  intimate 
relations  with  the  diplomatic  corps.  When  an  ambassa- 
dor or  minister  for  any  reason  absents  himself  from  his 
post,  before  his  departure  he  presents  the  secretary, 
either  in  person  or  by  note,  to  the  minister  of  foreign 
affairs  as  charge  d'affaires  ad  interim,  and  the  latter 
assumes  all  the  functions  of  the  mission.  A  recent  cir- 
cular instruction  of  the  Department  of  State  requires 
that  either  the  head  of  the  mission  or  the  secretary 
shall  be  always  at  his  post,  and  that  if  an  emergency 
arises  requiring  the  mission  to  be  left  under  the  tem- 
porary direction  of  the  second  or  third  secretary  the 
department  shall  be  first  consulted.^  Upon  the  death 
of  an  ambassador  or  minister,  the  secretary  ij^so  facto 
becomes  charge.  During  his  service  as  charge  he  is 
entitled  by  law  to  compensation  at  the  rate  of  one  half 
the  pay  of  his  chief. 

Secretaries  of  legations  are  authorized  to  adminis- 
ter oaths,  take  depositions,  and  generally  to  perform 
national  acts  (Rev.  Stat.  sec.  1730).  These  services  are 
usually  discharged  by  consuls,  but  it  is  sometimes  more 
convenient  to  resort  to  the  secretaries,  and  they  are  ex- 
pected as  a  general  rule  to  comply  with  the  request  for 
such  services. 

The  secretary  is  regarded  in  international  law  as  a 
diplomatic  representative,  and  is  entitled  to  the  privi- 

1  U.  S.  For.  Rel.  1902,  5. 


208  THE  PRACTICE  OF  DIPLOMACY 

leges  and  immunities  of  such  representative.  No  special 
ceremony  attends  his  arrival  at  his  post  other  than  that 
he  is  presented  by  his  chief  to  the  minister  for  foreign 
affairs,  and  to  his  colleagues  of  the  diplomatic  corps ; 
and  upon  the  first  diplomatic  or  public  reception  of  the 
court  he  is  presented  to  the  chief  of  the  state.  The 
duties  of  second  and  third  secretaries  are,  in  general, 
similar  to  those  of  a  first  secretary,  whom  they  assist 
in  the  work  of  the  mission ;  and  they,  in  turn,  become 
charge  d'affaires  ad  interim  in  the  absence  of  both  the 
head  of  the  mission  and  the  secretary. 

It  was  formerly  the  practice  in  the  diplomatic  service 
to  have  as  members  of  missions  a  number  of  young 
men  called  attaches,  who  served  the  government  with- 
out pay,  being  attracted  to  the  service  because  of  the 
experience  in  public  affairs  gained  thereby  or  the 
social  attractions  attending  the  position.  Lord  Crowley, 
before  the  British  Parliamentary  Committee  from  whose 
report  I  have  already  quoted,  said :  "  At  the  beginning 
of  the  present  century,  the  only  assistance  afforded  by 
the  Government  to  the  chief  of  an  embassy  or  mission 
was  that  of  a  secretary,  but  the  ambassador  or  minister 
was  allowed  to  name  a  certain  number  of  individuals 
who  on  his  recommendation  were  recog^nized  as  attached 
to  him,  and  whom  he  could  employ  in  the  public  service 
as  he  might  deem  useful.  The  post  of  an  attache  was 
constantly  filled  in  those  days  by  young  men  of  family 
and  future  who  desired  to  pass  a  few  months  agreeably 
abroad." 

This  practice  was  adopted  by  the  United  States  and 
followed  for  some  time.    Mr.  Cushing,  the  first  minister 


OTHER  DIPLOMATIC  OFFICIALS  209 

to  China,  took  with  him  five  attaches,  upon  the  sug- 
gestion of  Secretary  Webster,  who  wrote,  "  It  will  add 
dignity  and  importance  to  the  occasion,  if  your  suite 
could  be  made  respectable  in  number,  by  accepting  such 
offers  of  attendance  without  expense  to  the  govern- 
ment." Owing  to  its  abuse,  the  practice  of  allowing 
attaches  has  been  abolished  by  Congress,  and  such 
appointments  are  no  longer  made  by  any  diplomatic 
officer  of  the  United  States.  It  still  exists  with  most 
nations,  but  the  attaches  are  usually  required  to  pass  an 
examination,  receive  an  appointment  from  the  govern- 
ment, and  regularly  enter  the  service. 

Respecting  the  abolition  of  the  practice  by  Congress, 
Mr.  Dallas,  minister  in  London,  makes  the  following 
observations :  "  The  mischief  against  which  the  law  is 
aimed  had  long  been  noticed  at  the  Department  of 
State,  and  was  often  embarrassing  to  our  diplomatic 
representatives.  Under  the  old  usage,  unpaid  attaches 
might  be  created  without  stint  as  to  number;  and  a 
train  so  composed  was  thought,  and  justly  thought,  to 
give  eclat  to  a  mission.  Now  it  frequently  happened 
that  the  minister,  always  conscious  of  the  invidious  na- 
ture of  selecting  from  his  young  countrymen,  preferred 
giving  his  appointments  without  discrimination  and  to 
every  one  who  asked.  American  attaches  became  as 
plentiful  as  blackberries,  and  sometimes  deranged  by 
their  intermeddHng  the  business  of,  or  by  their  deport- 
ment, threw  discredit  upon,  the  legation.  Congress, 
moved  no  doubt  by  the  Secretary  of  State,  Governor 
Marcy,  who  was  pitiless  against  showy  pretensions, 
struck  at  the  root  of  the  evil,  by  an  express  prohibition. 


210  THE  PRACTICE  OF  DIPLOMACY 

I  have  occasionally  wished  to  possess  the  discretion ; 
but,  on  the  whole,  perceive  many  inconveniences  in 
which  I  should  be  involved  by  it,  and  have  therefore 
no  reluctance  in  strictly  complying  with  the  law."  ^ 

In  recent  years  the  United  States  has  adopted  a  cus- 
tom, established  by  the  military  powers  of  Europe,  of 
sending  abroad  ofiicers  of  the  army  and  navy  to  study 
and  report  to  their  respective  departments  the  progress 
made  in  military  and  naval  matters,  to  attend  the  ma- 
noeuvres, and  witness  the  movements  of  armies  and 
squadrons  in  time  of  war.  Officers,  when  designated 
by  the  respective  departments,  are  commissioned  by 
the  secretary  of  state,  assigned  to  reside  at  the  leading 
capitals  where  missions  are  established,  and  notice  of 
their  designation  is  given  the  resident  government  by 
the  ambassador  or  minister.  Though  they  are  attached 
to  the  mission,  they  are  not  under  the  direction  of  its 
chief,  and  report  directly  to  the  heads  of  their  own 
departments.  In  ceremonial  representations  the  naval 
and  military  attaches  form  a  part  of  the  official  staff  of 
a  mission,  and  take  precedence  according  to  their  rank, 
those  above  a  captain  in  the  navy  or  colonel  in  the 
army  having  place  above  the  secretaries,  and  those  of 
lower  rank  next  below  the  first  secretary. 

In  a  number  of  missions  clerks  are  employed,  but 
they  have  no  official  rank  or  position  and  no  immunities 
except  as  members  of  the  minister's  household,  nor  can 
they  perform  any  diplomatic  functions.  In  oriental 
countries  there  is  attached  to  each  of  the  legations  an 
official  interpreter,  the  one  in  Turkey  being  known  as 

1  2  Dallas's  Letters  from  Loudon,  128. 


OTPIER  DIPLOMATIC  OFFICIALS  211 

"  dragoman,"  and  he  is  quite  an  important  personage  in 
the  legation. 

By  recent  acts  of  Congress  ten  "  student  interpret- 
ers "  at  the  legation  in  China  and  six  at  the  embassy 
in  Japan  have  been  authorized.  They  are  to  be  citizens 
of  the  United  States,  their  selection  is  to  be  made  non- 
partisan so  far  as  may  be  consistent  with  aptness  and 
fitness  for  the  intended  work,  and  it  is  made  their  duty 
to  study  the  Chinese  or  Japanese  language  with  a  view 
to  supplying  interpreters  to  the  legation  and  consulates 
in  China  and  Japan,  and  they  are  required  to  sign  an 
agreement  to  continue  in  the  service  for  a  period  of 
ten  years.^ 

Every  foreign  office  publishes  at  intervals  a  diplomatic 
list,  that  of  the  Department  of  State  appearing  monthly, 
which  contains  the  names  of  the  members  of  the  missions 
in  the  order  of  rank  of  the  chief,  as  also  of  their  wives  and 
daughters.  In  former  times  in  Europe  female  ambassa- 
dors or  special  envoys  were  not  unknown  in  the  diplo- 
matic service,^  but  in  modern  times  no  such  distinction 
has  been  awarded  the  fair  sex.  However,  they  enjoy 
many  of  the  immunities  of  the  diplomatic  service  and 
marked  social  privileges.  In  most  of  the  royal  courts  of 
Europe  the  wives  of  both  ambassadors  and  ministers  are 
honored  with  the  title  of  "  Her  Excellency  ; "  and  they 
usually  receive  and  return  calls  from  the  wives  of  heads 
of  departments,  esteemed  there  a  great  mark  of  atten- 
tion. Mr.  Monroe,  when  secretary  of  state,  found  the 
omission  of  this  courtesy  a  cause  of  complaint  to  the 

1  Acts  of  Congress,  approved  March  12,  1904,  and  June  16,  1906. 
^  Embassies  and  Foreign  Courts,  London,  1855,  102. 


212  THE   PRACTICE   OF  DIPLOMACY 

resident  representative  of  a  European  court,  and  took 
occasion  to  note  the  uniform  rule  of  the  heads  of  the 
government  at  Washington,  whose  "  wives  return  every 
visit  of  the  wives  of  foreign  ministers."  ^ 

In  addition  to  the  foregoing  there  is  still  another 
person  often  attached  to  missions,  the  bearer  of  dis- 
patches or  official  messenger.  In  former  times  govern- 
ments were  accustomed  to  maintain  a  regular  staff  of 
such  public  servants,  and  they  formed  an  important 
part  of  a  legation,  but  they  have  lost  much  of  their 
value  and  are  now  seldom  made  use  of  by  the  diplo- 
matic officers  of  the  United  States.  A  century  or  two 
ago,  when  the  mail  service  was  very  meagre  and  imper- 
fect or  did  not  exist  at  all,  and  even  later  when  the  sa- 
credness  of  correspondence  was  not  properly  recognized 
in  the  mails,  there  was  urgent  need  of  official  messen- 
gers between  a  government  and  its  missions  abroad. 
Under  international  law  these  officials  are  entitled  to 
free  and  unobstructed  passage,  and  the  seals  of  their 
bags  or  pouches  are  inviolate. 

The  government  of  the  United  States  does  not  main- 
tain any  such  persons  regularly  in  this  service,  but  the 
heads  of  missions  are  authorized  to  employ  special  mes- 
sengers whenever  in  their  judgment  the  interests  of  the 
public  service  require  it.  They  are  usually  employed  to 
carry  home  treaties  after  being  signed,  and  in  time  of 
war. 

The  growing  disuse  of  special  messengers  is  another 
proof  of  the  improved  morale  of  governments  respect- 
ing the  diplomatic  service  in  these  latter  days.    I  have 

1  1  Wharton's  Digest,  705. 


OTHER  DIPLOMATIC   OFFICIALS  213 

elsewhere  noted  the  embarrassments  under  which  the 
American  representatives  of  the  Revolutionary  period 
labored  respecting  their  correspondence,  it  being  at 
that  period  regarded  as  a  proper  method  of  circumvent- 
ing diplomatic  efforts  to  violate  the  correspondence  in 
the  mails  and  in  the  offices  of  ministers.  The  Continen- 
tal Congress  so  far  yielded  to  the  practice  as  to  authorize 
the  secretary  of  foreign  affairs  to  exercise  supervision 
of  the  mails.^  A  story  is  told  illustrative  of  the  shame- 
lessness  of  the  practice.  The  French  ambassador  of  the 
time  made  complaint  to  the  British  secretary  for  for- 
eign affairs,  the  Duke  of  Newcastle,  that  the  dispatches 
sent  him  from  France  had  been  not  only  opened,  but 
were  actually  forwarded  on  to  him  sealed  with  the  royal 
arms  of  England ! 

"  It  was  in  consequence  of  a  mistake  at  the  Foreign 
Office,"  replied  the  duke,  laughing  at  his  infamy  as  a 
good  joke.^ 

The  last  of  the  great  congresses  attended  by  the  em- 
perors and  kings  was  that  of  Vienna  in  1815,  which 
probably  eclipsed  all  others  in  the  matter  of  attendance 
of  royalty  and  display.  From  an  interesting  account  of 
that  memorable  congress,  recently  written  by  a  compe- 
tent author,^  the  following  extract  is  made,  showing 
the  extent  to  which  correspondence  was  violated :  — 

"  Every  tolerably  prominent  official  person  was  under 
surveillance,  and  every  day  the  Minister  of  Pohce  collected 
reports  to  put  before  the  emperor.    Thus  arose  the  ac- 

^  Foster's  American  Diplomacy,  26,  92,  98. 
^  Embassies  and  Foreign  Courts,  137. 

'  The  Vienna  Congress,  by  Professor  August  Fournier,  in  The  Inter- 
national Quarterly,  New  York,  January,  1905. 


214  THE  PRACTICE  OF  DIPLOMACY 

tivity  of  the  '  Secret  Cabinet/  a  board  of  magistrates 
which,  at  that  time,  when  a  respect  for  the  privacy  of 
letters  was  not  yet  current,  overlooked  the  correspond- 
ence in  the  European  states.  Whatever  the  post  or  the 
express  offered  in  the  way  of  letters  of  official  personages, 
and  all  that  could  be  obtained  from  couriers,  was  '  inter- 
cepted '  —  that  is,  opened,  read,  copied,  and  forwarded 
—  sometimes  the  last  did  not  happen.  In  this  regard 
the  Board  was  indeed  no  respecter  of  persons.  The  Em- 
peror's own  brothers  and  sisters,  the  Empress  Marie 
Louise,  his  daughter,  the  foreign  sovereigns,  princes  and 
princesses,  to  say  nothing  of  diplomats,  all  were  under  the 
surveillance  of  the  '  Secret  Cabinet,'  so  that  important 
letters  must  be  forwarded  by  personal  conveyance  if  they 
were  to  remain  unmolested.  .  .  .  And  not  only  the  finished 
dispatched  letters,  but  also  the  unfinished  conceptions 
or  bits  of  writing  which  were  intended  to  be  destroyed, 
interested  the  police.  The  paper  baskets  of  the  foreign- 
ers were  searched  through  by  spies.  The  documents 
which  had  been  torn  to  bits  were  put  together  and  were 
called  '  chiffons ; '  indeed  the  half-burned  contents  of 
the  chimney-place  made  their  way  to  the  Board  and 
were  zealously  —  if  indeed  with  only  occasional  success 
— examined  for  State  secrets.  A  large  part  of  these 
documents  has  been  preserved,  and  though  we  may  con- 
demn the  government  methods  of  a  reactionary  time,  as 
they  deserved,  yet  it  is  not  to  be  denied  that  they  now 
help  us  to  satisfy  our  interest  in  things  past." 

How  far  a  government  at  the  present  day  is  justified 
in  making  use  of  correspondence  which  falls  into  its 
hands  by  other  than  the  usual  course  is  not  clearly 


OTHER  DIPLOMATIC   OFFICERS  215 

established.  We  recall  that  Dr.  Franklin  was  driven 
from  England  because  of  the  use  he  made  of  letters 
irregularly  obtained,  and  so  recent  an  authority  as 
Lecky,  the  historian,  holds  him  guilty  of  fraudulent 
and  corrupt  conduct.  This  I  regard  as  an  unjust  judg- 
ment, but  it  shows  the  strength  of  public  sentiment  on 
the  subject.  On  the  eve  of  the  Spanish  war  in  1898  a 
letter,  supposedly  purloined  from  the  Havana  post-office, 
came  into  the  hands  of  the  Department  of  State,  signed 
by  the  Spanish  minister  in  Washington.  It  spoke  in 
contemptuous  terms  of  the  President  and  of  the  motives 
influencing  his  conduct.  The  minister  was  confronted 
with  the  letter  by  an  official  of  the  department,  and 
unhesitatingly  admitted  its  genuineness.  Whereupon 
all  intercourse  with  him  ceased,  and  he  was  given  his 
passports.  The  action  of  the  department  was  criticised 
in  some  quarters  as  a  breach  of  the  inviolability  of  the 
postal  service. 

The  ancient  method  of  secret  cipher  for  conceaHng 
correspondence  is  still  followed  in  the  Department  of 
State  as  well  as  in  all  other  civilized  governments.  This 
cipher  is  furnished  to  the  embassies  and  legations,  and  is 
in  frequent  use  between  them  and  the  home  government. 
It  is  scarcely  possible  to  construct  a  cipher  which  can- 
not be  translated,  and  governments  understand  this 
fact.  Its  use  is  resorted  to  mainly  for  the  purpose  of 
concealing  official  messages  from  the  telegraphic  opera- 
tors who  handle  them  and  from  the  general  pubhc.  In 
time  of  war  they  are  fair  game  for  the  enemy,  and  in 
critical  periods  they  are  a  great  temptation  to  a  not 
over-scrupulous  government. 


CHAPTER  XI 

THE    CONSULAR   SERVICE 

The  establishment  of  consuls  as  a  permanent  class 
took  place  several  centuries  before  the  practice  of  main- 
taining embassies  or  legations  became  general.  As  a 
class  of  international  officials  it  had  its  origin  after  the 
Crusades  and  when  the  Eastern  Roman  Empire  was  in 
its  decay,  at  the  period  when  Venice  and  other  Italian 
states  were  assuming  commercial  importance.  It  arose, 
in  fact,  out  of  the  differences  of  law  and  religion  in  the 
cities  of  the  Levant,  where  the  Italian  commercial  states 
maintained  colonies  or  had  large  mercantile  interests,  the 
affairs  of  which  were  administered  by  consuls  or  consul- 
judges,  and  at  that  time  their  functions  were  largely 
of  a  judicial  character,  the  name  being  traced  back  to 
the  Roman  consuls.  With  the  check  given  to  the  power 
of  the  Ottoman  rulers  and  the  development  of  commerce 
in  Western  Europe  the  character  of  the  service  was  ma- 
terially changed,  and  the  custom  of  appointing  consuls 
was  extended  to  the  reciprocal  exchange  of  such  offi- 
cials among  the  Christian  nations.  Their  judicial  powers 
were  much  restricted,  their  commercial  functions  became 
greatly  enlarged,  and  they  assumed  the  character  by 
which  they  are  now  recognized  in  international  law. 

The  United  States  early  in  its  history  accepted  the 
system  as  established  under  the  practice  of  nations,  and 
has  done  much  to  bring  order  out  of  the  confused  state 


THE  CONSULAR  SERVICE  217 

in  which  the  system  existed  when  this  country  entered 
the  family  of  nations.  Its  first  treaty  with  a  foreign 
power  ratified  after  the  adoption  of  the  Constitution  was 
a  consular  convention  with  France,  and  it  has  been  the 
most  active  of  the  nations  in  negotiating  such  conven- 
tions, and  in  securing  for  consuls  recognized  place  and 
functions  under  international  law.  Although  no  law  of 
Congress  had  been  passed  creating  the  system  at  the 
time,  the  Federal  Constitution  recognized  the  interna- 
tional character  of  consuls,  and  President  Washington 
had  appointed  fifteen  such  officials  before  the  enactment 
of  the  law  of  1792  on  the  subject.  While  the  executive 
department  has  been  so  efficient.  Congress  has  been  slow 
to  adopt  the  necessary  legislation  for  a  proper  organiza- 
tion of  the  system.  This  was  left  entirely  to  the  discre- 
tion of  the  Department  of  State  until  the  law  of  1856 
was  passed,  which  was  the  first  attempt  by  the  legis- 
lative department  to  provide  an  organic  act  for  its  reg- 
ulation. 

The  government  began  by  appointing  unpaid  consuls 
from  American  merchants  residing  abroad,  or,  if  they 
were  sent  from  America,  they  were  allowed  to  engage  in 
business  as  an  equivalent  for  salary.  Although  this  was 
found  to  work  badly,  no  change  occurred,  and  up  to 
1856  the  consuls  were  paid  in  fees  received  by  them. 
Under  the  acts  of  that  and  later  years  most  of  these 
earlier  abuses  have  been  removed  and  the  system  estab- 
lished uj^on  a  better  basis. 

The  principal  grades  in  the  consular  service  of  the 
United  States  are  as  follows :  — 

Consuls-general.  Consuls. 


218  THE  PRACTICE  OF  DIPLOMACY 

Subordinate  to  these  are :  — 

Vice  and  deputy  consuls-general.  Consular  agents. 

Vice  and  deputy  consuls.  Consular  clerks. 

In  addition  to  these,  the  Fifty-ninth  Congress  provided 
for  the  appointment  of  five  inspectors  of  consulates  to 
be  designated  as  consuls-general  at  large.^ 

Consuls-general  of  the  United  States  have  usually  a 
supervising  jurisdiction  over  the  consuls  in  the  country 
to  which  they  are  accredited,  but  to  this  rule  there  are 
some  exceptions.  Of  recent  years  more  than  one  consul- 
general  has  been  appointed  in  China  and  some  other 
countries,  rather  to  secure  equality  of  treatment  with 
other  foreign  consuls  than  on  account  of  the  exigencies 
of  commerce.  Consuls-general  and  consuls  are  ap- 
pointed by  the  President  and  confirmed  by  the  Senate. 
Vice  and  deputy  consuls-general  and  consuls  are  recom- 
mended by  their  chiefs,  and  are  commissioned  by  the 
secretary  of  state ;  the  first-named  act  only  in  the  ab- 
sence of  their  chiefs,  but  the  deputies  assist  their  chief 
in  a  subordinate  capacity  in  the  place  where  the  latter's 
of6.ce  is  located,  and  have  no  power  to  perform  a  pub- 
lic official  act.  Consular  agents  are  nominated  by  the 
consuls,  are  commissioned  by  the  secretary  of  state,  and 
act  as  the  representative  of  their  chief  at  other  com- 
mercial places  within  their  district.  Consular  clerks  are 
appointed  by  the  President ;  they  are  by  law  limited  in 
number  to  thirteen  ;  they  cannot  be  removed  from  office 
except  for  cause ;  and  are  assigned  by  the  secretary  of 
state  to  such  consulates  as  he  may  think  the  service 
requires,  to  act  subordinate  to  the  principal  consular 

^  Act  of  Congress,  April  5,  1906. 


THE  CONSULAR  SERVICE  219 


officer  at  the  post.  There  are  also  what  are  termed 
merchaut  or  commercial  consuls,  being  those  receiv- 
ing a  salary  not  exceeding  $1,000,  the  limit  at  which  a 
consul  can  by  statute  engage  in  business.  In  most  coun- 
tries vice-consuls  are  included  in  the  regular  consular 
grade,  and  not  merely  acting  during  the  absence  of  the 
chief,  as  in  the  United  States. 

When  a  consul-general,  or  consul,  is  appointed,  he  is 
required  to  take  the  prescribed  oath  of  office  and  file 
with  the  department  a  bond,  in  a  sum  fixed  by  the 
secretary  of  state,  which  in  no  case  shall  be  less  than 
his  annual  salary.  A  diplomatic  officer  is  not  required 
to  give  a  bond  when  he  enters  upon  his  duties,  but  it  is 
made  necessary  in  the  case  of  a  consul  because  of  the 
receipt  by  him  of  pubHc  moneys  and  of  his  control  of 
the  property  of  citizens.  Like  an  envoy,  he  is  granted 
not  exceeding  thirty  days'  time  awaiting  instructions 
and  preparing  for  his  post,  and  a  liberal  allowance  for 
'^  traveling  time." 

It  is  the  policy  of  the  government  not  to  appoint 
foreign  subjects  as  consular  officers,  and  this  is  rarely 
done,  and  then  only  at  places  without  fixed  salaries  and 
where  the  services  of  citizens  of  the  United  States 
have  not  been  available.  It  is  also  the  policy  of  the 
government  not  to  appoint  naturalized  citizens  to  con- 
sulates within  the  country  of  their  nativity,  although 
it  has  not  been  invariably  observed.  The  conclusion  of 
Secretary  Fish  was  that  the  experience  of  the  govern- 
ment had  demonstrated  the  inconvenience  and  often  se- 
rious embarrassment  resulting  from  such  appointments.^ 

1  Wharton's  Digest,  761. 


220  THE  PRACTICE  OF  DIPLOMACY 

Mr.  Eugene  Schuyler,  who  had  large  experience  in  the 
service,  says :  "  No  person  who  has  lived  abroad  or  has 
had  to  do  with  consular  business,  whether  as  an  of&cial 
or  as  a  client,  can  for  a  moment  doubt  that  the  interests 
of  the  United  States  would  be  better  served  had  native- 
born  citizens  been  appointed  to  these  posts  "  (places  filled 
by  naturalized  citizens  in  the  country  of  their  nativity). 
He  adds :  "  It  cannot  be  expected  that  a  government 
will  cheerfully  accept  as  consul  a  man,  no  matter  what 
his  abilities  may  be,  who  has  emigrated  on  account  of 
political  difficulties,  or  who  has  gone  away  in  order  to 
escape  the  conscription."  ^ 

Upon  his  arrival  at  his  post  a  consul  must  report  the 
fact  to  the  minister  of  the  United  States  in  the  coun- 
try. The  commission  of  a  newly  appointed  consul  is  not 
sent  directly  to  him,  but  is  transmitted  by  the  secre- 
tary of  state  to  the  minister  of  the  United  States  in  the 
country  where  his  post  is  located,  in  order  that  the  lat- 
ter may  apply  to  the  minister  for  foreign  affairs  for  an 
exequatur  for  the  consul.  This  is  an  instrument  or  de- 
cree whereby  a  sovereign  or  chief  of  state  authorizes  a 
foreign  consul  to  discharge  the  functions  which  are  con- 
fided to  him,  and  is  the  evidence  of  his  official  character 
to  the  local  authorities  in  his  consular  district.  In  the 
United  States  this  instrument  is  signed  by  the  President, 
sealed  with  the  Great  Seal,  and  countersigned  by  the 
secretary  of  state,  and  announcement  of  its  issuance  is 
made  in  the  public  press.  Such  is  the  custom  of  most 
governments,  but  in  some  countries  the  consul  is  merely 
notified  through  his  minister  that  he  is  recognized  as 

*  Schuyler's  American  Diplomacy,  8081. 


THE  CONSULAR  SERVICE  221 

consul,  and  in  one  at  least  it  is  the  practice  simply 
to  write  the  word  "  exequatur  "  across  the  commission. 
The  exequatur  when  issued  is  forwarded  to  the  consul 
with  his  commission,  and  upon  its  receipt  he  is  prepared 
to  act  officially.  Sometimes,  however,  it  occurs  that 
there  is  a  delay  in  the  issuance  of  the  exequatur,  as  in 
the  case  of  consuls  appointed  to  distant  colonies,  and, 
upon  application  of  the  minister  of  the  United  States, 
the  minister  for  foreign  affairs  authorizes  him  to  act 
pending  its  receipt. 

In  respect  of  the  appointment  of  consuls  the  practice 
of  the  Chinese  government  differs  from  that  of  most 
nations.  As  already  mentioned,  the  Chinese  minister  at 
Washington  is  likewise  accredited  to  the  republics  of 
Mexico,  Cuba,  and  Peru.  He  brings  with  him  a  numer- 
ous suite,  out  of  which  he  selects  consuls-general  and 
consuls  and  the  subordinate  officials  for  all  the  con- 
sulates in  the  United  States,  including  Hawaii  and  the 
Philippines,  Mexico,  Cuba,  and  Peru.  He  furnishes  each 
of  them  a  commission  signed  and  sealed  by  himself,  and 
the  commission  is  the  basis  of  the  exequatur  issued  by 
the  government  of  the  United  States. 

Every  government  has  the  right  to  refuse  an  exequa- 
tur, but  the  withholding  of  it  is  an  extreme  act,  and  is 
rarely  resorted  to  by  the  United  States.  It  is,  however, 
not  uncommon  with  European  nations.  As  indicating 
the  reasons  which  justify  such  action,  it  may  be  noted 
that  in  recent  years  the  Turkish  government  refused 
an  exequatur  to  an  American  consul  at  Beirut  because 
he  was  a  clergyman  and  might  be  too  intimately  con- 
nected with  the  Protestant  missions ;  and  another  was 


222  THE  PKACTICE  OF  DIPLOMACY 

refused  by  Austria  on  account  of  his  political  opinions, 
the  consul  having  previously  been  an  Austrian  sub- 
ject. The  withdrawal  of  the  exequatur,  which  may  be 
made  by  the  issuing  government  at  any  time,  operates 
as  a  dismissal  of  the  consul,  as  he  can  no  longer  exer- 
cise his  duties. 

When  he  enters  on  his  office  a  consul-general  gives 
notice  to  the  Department  of  State  and  to  the  diplomatic 
representative,  and  consuls  notify  the  department  and 
the  consul-general.  In  much  the  same  way  as  an  envoy 
the  consular  officer  enters  upon  his  duties,  calling  first 
upon  the  authorities  of  the  post  or  place  where  his  office 
is  located  and  upon  his  consular  colleagues,  receiving 
from  his  predecessor  the  records,  archives,  and  property 
of  the  consulate  and  taking  an  inventory  of  the  same. 
He  is  required  to  reside  in  the  place  where  his  office  is 
located,  which  must  be  conveniently  situated,  and  it  is 
forbidden  to  have  the  same  in  the  counting-room  or 
place  of  business  of  a  banker,  merchant,  manufacturer, 
or  other  like  person,  in  order  to  avoid  all  suspicion  of 
undue  influence  in  the  discharge  of  his  official  duties. 
The  consular  district  is  marked  out  by  the  Department 
of  State,  in  order  that  there  may  be  no  conflict  of  juris- 
diction with  neighboring  American  consuls. 

The  duties  of  a  consul  may  be  negatively  stated  to  be 
not  of  a  diplomatic  character.  He  may  have  frequent 
occasion  to  hold  relations  with  the  local  authorities  re- 
specting the  protection  of  American  citizens  and  their 
interests,  but  all  diplomatic  intervention  must  be  made 
through  the  resident  minister,  to  whom  the  consuls  will 
report  each  case  as  it  arises.    Occasionally,  in  the  absence 


THE  CONSULAR  SERVICE  223 

of  both  the  minister  and  secretary,  a  consul  is  appointed 
charge  ad  interim  of  a  mission,  but  not  without  the 
special  authority  of  the  secretary  of  state  and  the  con- 
sent of  the  minister  of  foreign  affairs  of  the  country 
where  he  resides.  His  duties  as  such  are  not  discharged 
in  virtue  of  his  consular  capacity,  but  of  the  special 
authority  given  by  the  secretary  of  state. 

The  duties  of  a  consular  officer  of  the  United  States 
are  mainly  commercial,  but  are  of  such  a  multifarious  and 
varied  character  that  I  can  state  them  only  in  general 
terms,  and  must  refer  to  the  Printed  Consular  Regula- 
tions for  fuller  information  which  is  there  set  forth 
in  great  detail,  constituting  a  volume  of  over  eight  hun- 
dred pages.  The  duty  which  most  absorbs  the  time  of 
an  American  consul  in  a  commercial  post  is  that  which 
has  relation  to  the  tariff  system.  This  system,  because 
of  its  exacting  requirements  and  intricacy,  imposes  upon 
the  American  consular  officer  many  duties  not  incident  to 
the  same  service  of  many  other  countries.  A  few  only 
of  these  can  be  noticed  here. 

All  goods  intended  for  importation  into  the  United 
States  must  be  accompanied  by  invoices  sworn  to  and 
certified  by  the  consul  at  the  port  of  shipment.  The 
object  of  the  consul's  interposition  is  to  aid  the  customs 
authorities  in  verifying  the  correctness  of  the  invoice 
and  to  prevent  frauds  upon  the  revenue.  This  presup- 
poses on  the  part  of  the  consul  a  large  knowledge  of  the 
state  of  the  trade  and  of  values  at  the  locality  of  his 
residence,  which  cannot  be  acquired  without  close  atten- 
tion and  study. 

He  has  other  duties  as  to  imports,  among  which  are 


224  THE    PRACTICE   OF  DIPLOMACY 

certain  acts  respecting  some  classes  of  articles  which  are 
entitled  to  free  entry ;  also  as  to  returned  American 
merchandise  which  has  been  shipped  abroad.  Goods 
imported  but  not  entered  for  consumption  and  Ameri- 
can products  exported  to  avoid  the  payment  of  the 
internal  revenue  tax  are  allowed  to  be  shijjped  under 
bond,  and  the  consul  is  required  to  furnish  landing 
certificates  that  they  actually  reached  his  port.  He  has 
certain  exacting  duties  as  to  the  inspection  and  seaHng 
of  cars  from  Canada  destined  for  a  port  of  entry  not 
on  the  frontier ;  he  must  see  that  manufactured  goods 
shipped  from  his  port  have  the  marks  of  origin  properly 
stamjied  upon  them;  and  that  goods  the  product  of 
convict  labor,  prohibited  by  law,  are  not  exported  to  the 
United  States. 

Various  duties  are  imposed  upon  consuls  respecting 
American  shipping.  Every  vessel  engaged  in  commerce, 
registered  in  the  United  States  and  flying  the  American 
flag,  must  upon  arrival  in  a  foreign  port  deliver  what 
are  termed  "  the  ship's  papers"  to  the  consul  there  sta- 
tioned. These  embrace  the  certificate  of  register,  the 
crew  list,  and  shipping  articles.  They  are  retained  in  a 
safe  place  by  the  consul  while  the  vessel  remains  in 
port,  and  are  not  redelivered  to  the  master  until  he 
produces  the  clearance  of  his  vessel  from  the  proper 
officer  of  the  port,  and  shall  satisfy  the  consul  that  he 
has  discharged  all  his  obligations  to  his  seamen  and  in 
the  port. 

He  must  receive  all  "protests"  which  are  offered  him 
by  the  master,  seamen,  or  passengers  of  an  American 
vessel  arriving  in  his  port.    This  is  a  technical  term 


THE   CONSULAR  SERVICE  225 

applied  to  any  statement  relating  to  the  events  of  the 
voyage,  affecting  the  ship,  cargo,  or  inmates,  and  when 
properly  certified  by  the  consul  is  given  special  faith  in 
the  courts  of  the  United  States. 

Before  a  vessel,  whether  American  or  foreign,  sails 
for  a  port  of  the  United  States,  the  consul  must  see 
that  the  ship's  "  manifest "  is  such  as  is  required  by  the 
laws  of  the  United  States.  This  is  a  document  for  the 
information  of  the  customs  officer  of  the  port  of  arrival, 
giving  the  separate  items  of  the  vessel's  cargo,  the 
names  of  the  consignees,  a  list  of  passengers,  their  bag- 
gage, and  other  items. 

A  further  duty  respecting  the  shipping  is  to  keep  in 
the  consulate,  in  a  conspicuous  place,  the  pilot  charts 
and  all  notices  to  mariners  published  by  the  hydro- 
graphic  officer  of  the  Navy  Department,  and  also  all 
information  of  benefit  which  shipmasters  may  furnish 
to  the  maritime  community  at  large.  The  consuls  also 
are  expected  to  communicate  at  once  to  the  Department 
of  State  any  information  they  may  obtain  of  value  to 
the  seafarer  or  tending  to  decrease  the  dangers  of  nav- 
igation. In  case  of  wrecked  and  stranded  American 
vessels  within  his  district,  the  consul  must  render  all 
the  assistance  in  his  power,  and,  in  case  of  the  loss  or 
absence  of  the  master  or  other  authorized  person,  he 
should  take  charge  of  the  wreck  and  cargo,  if  permitted 
to  do  so  by  the  laws  of  the  country. 

The  government  of  the  United  States  regards  Ameri- 
can seamen  as  its  special  wards,  and  it  has  adopted 
carefully  framed  and  detailed  laws  for  their  protection 
against  injustice  and  oppression.   To  this  end  it  seeks 


226  THE  PRACTICE  OF  DIPLOMACY 

to  follow  them  with  its  guardianship  on  the  high  seas 
and  into  foreign  ports.  It  is  made  the  duty  of  a  consul, 
upon  complaint  of  any  of  the  crew  of  an  American 
vessel,  to  see  that  their  wages  are  properly  paid  and 
that  they  are  not  discharged  except  in  accordance  with 
their  contract  as  set  forth  in  the  shipping  articles.  If 
they  are  found  stranded  and  destitute  in  a  foreign  port, 
the  consul  is  authorized  to  afford  them  temporary 
relief,  and  it  is  made  his  duty  to  assist  them  in  reship- 
ment  or  to  procure  them  transportation  to  their  home 
port.  He  is  to  investigate  any  charges  of  mutiny  or 
insubordination  on  the  high  sea  or  in  port,  to  send  back 
to  the  United  States  as  prisoners  for  trial  and  punish- 
ment any  mutineers,  and  to  adjust  disputes  between 
master  and  crew. 

The  laws  of  the  United  States  confer  upon  consuls 
jurisdiction  in  such  cases,  an  American  vessel  in  a  for- 
eign port  being  regarded  as  to  its  inmates  as  American 
territory.  When  a  merchant  vessel  enters  a  port  of 
another  country  for  the  purposes  of  trade  it  subjects 
itself  to  the  laws  of  the  place,  but  by  the  comity  of 
nations  it  has  come  to  be  recognized  that  the  discipHne 
of  the  ship  and  acts  done  on  board  which  affect  only 
the  vessel  and  the  crew,  and  do  not  involve  the  dignity 
and  peace  of  the  port,  should  be  left  to  be  dealt  with  by 
the  officers  of  the  ship  and  according  to  the  laws  of  the 
government  to  which  the  vessel  belongs.  In  such  cases  a 
consul  acts  as  a  judge  between  the  parties.  These  mat- 
ters are,  however,  often  regulated  by  treaty  stipulations. 

The  duties  of  an  American  consul  towards  his  coun- 
trymen as  stated  in  the  Consular  Regulations  are  to 


THE  CONSULAR  SERVICE  227 

endeavor  on  all  occasions  to  maintain  and  promote  all 
the  rightful  interests  of  citizens,  and  to  protect  them  in 
all  privileges  that  are  provided  for  by  treaty  or  conceded 
by  usage.  He  is  to  protect  them  before  the  authorities 
in  all  cases  in  which  they  may  be  injured  or  oppressed, 
but  his  efforts  should  not  be  extended  to  those  who 
have  been  willfully  guilty  of  an  infraction  of  the  laws. 
He  should  endeavor  to  settle  in  an  amicable  manner 
disputes  in  which  his  countrymen  are  concerned,  but  he 
is  to  take  no  part  in  litigation  between  citizens. 

He  has  no  authority  to  issue  passports  when  stationed 
in  a  country  having  a  resident  American  minister,  but 
it  is  his  duty  to  vise,  or  place  his  indorsement  on,  pass- 
ports, which  has  the  effect  more  readily  to  establish  their 
authenticity  in  the  country  where  he  is  located.  He  is 
required  to  keep  a  register  of  American  citizens  resid- 
ing in  his  district,  and  a  registry  of  births  and  deaths 
is  also  kept.  On  the  death  of  Americans,  in  case  no 
relatives  or  friends  are  present,  he  is  to  attend  to  their 
burial,  report  to  the  department,  and  take  charge  of 
their  effects.  Under  similar  circumstances  he  represents 
the  estate  before  the  local  courts  when  property  is  left 
of  which  the  courts  take  jurisdiction. 

The  duties  of  consuls  respecting  unfortunate  Amer- 
icans may  be  illustrated  by  a  case  which  came  under  my 
observation  during  my  residence  in  Spain.  A  worthy 
gentleman,  who  had  creditably  served  our  country  abroad 
as  minister,  was  passing  the  winter  at  the  country  place 
of  a  personal  friend,  a  Spanish  nobleman,  in  the  hope 
of  restoring  his  enfeebled  health.  In  a  fit  of  melancholia, 
to  which  he  was  occasionally  subject,  he  committed  sui- 


228  THE  PRACTICE  OF  DIPLOMACY 

cide.  Upon  his  person  was  found  a  letter  of  credit  for 
$5,000.  His  Spanish  friends  could  not  understand  why 
he  should  want  to  end  his  life  when  he  had  such  a  sum 
of  money  in  his  pocket. 

The  death  was  reported  to  the  department  by  tele- 
graph, and  instructions  were  received  to  have  the  consul 
at  Malaga  return  his  body  to  the  United  States.  But 
meanwhile  interment  had  taken  place,  and  application 
had  to  be  made  to  the  minister  of  the  interior  at  Madrid 
to  obtain  a  suspension  of  the  sanitary  laws  against 
disinterment.  The  consul  then  proceeded  to  engage  a 
small  vessel  to  convey  the  body  from  the  near-by  port 
to  Malaga  or  Gibraltar,  whence  it  could  be  transshipped 
to  the  United  States.  In  this  he  succeeded  with  great 
difficulty,  because  the  malediction  of  the  Church  in  that 
country  rested  on  suicides.  But  unluckily  while  the  dis- 
interment was  being  effected  an  earthquake  occurred, 
not  an  unusual  phenomenon  in  the  region;  and  the 
superstitious  sailors,  interpreting  this  as  a  manifesta- 
tion of  Divine  interdiction,  refused  absolutely  to  convey 
the  accursed  body.  Not  until  some  weeks  had  passed 
was  the  consul  able  to  have  a  British  vessel  touch  at  the 
port  and  transport  the  body  to  Gibraltar. 

Marriages  often  occur  in  the  consulates,  and  consuls 
are  required  by  law  of  Congress  to  act  as  a  witness  to 
the  marriage  when  requested,  which  has  the  legal  effect 
stated  in  the  law ;  but  these  effects  apply  only  to  the 
Territories  and  the  District  of  Columbia,  as  Congress  has 
no  power  to  legislate  on  the  subject  of  marriage  relations 
in  the  States. 

The  immigration  laws  of  the  United  States  impose  quite 


THE  CONSULAR  SERVICE  229 

important  duties  on  consuls.  Under  the  treaty  and  laws 
respecting  the  exclusion  of  Chinese  laborers  from  the 
United  States,  consuls  are  required  to  authenticate  the 
correctness  of  various  certificates  issued  by  the  Chinese 
officials.  Persons  coming  to  the  United  States  under 
contracts  to  labor  are  forbidden  to  enter ;  so  likewise 
are  convicts,  anarchists,  polygamists,  idiots,  the  insane, 
paupers,  persons  affected  with  contagious  diseases,  and 
those  imported  for  immoral  purposes.  It  is  the  business 
of  the  consul  of  the  port  of  departure  to  prevent,  as  far 
as  it  is  possible,  such  persons  from  taking  passage  for  the 
United  States. 

The  quarantine  laws  and  regulations  call  for  much 
vigilance  by  consuls.  They  must  see  that  vessels  des- 
tined for  the  United  States  are  free  from  contagious  dis- 
eases and  have  a  clean  bill  of  health.  They  are  also  to 
report  by  cable  or  mail  the  prevalence  in  their  districts 
of  epidemics  or  plagues,  the  prevalence  of  diseases  of 
cattle,  and  to  see  that  in  the  shipment  of  hides  and 
rags  proper  fumigating  precautions  are  taken.  For  these 
purposes  medical  officers  are  detailed  at  the  most  im- 
portant ports  to  act  in  cooperation  with  the  consuls. 

Besides  reports  as  to  the  foregoing  matters,  consuls 
are  required  to  send  to  the  department  a  great  number 
of  reports,  monthly,  quarterly,  annually,  and  at  other 
times,  on  such  a  variety  of  subjects  that  reference  must 
be  made  to  the  Consular  Regulations  for  details.  They 
are,  however,  mainly  of  a  commercial  character,  as  the 
first  and  chief  duty  of  the  consular  service  is  to  culti- 
vate and  develop  American  trade. 

The  visit  of  American  naval  vessels  to  foreign  ports 


230  THE  PRACTICE   OF  DIPLOMACY 

occasions  an  exchange  of  social  courtesies  between  their 
officials  and  the  consuls.  These  are  carefully  indicated 
in  the  Regulations,  and  the  consuls  are  there  informed 
as  to  the  calls  to  be  made,  the  number  of  saluting  guns 
they  are  entitled  to,  and  other  details.  In  times  of  civil 
disturbance  naval  vessels  are  sometimes  sent  to  foreign 
ports  at  the  request  of  consuls  for  the  protection  of 
American  interests.  In  war  times  increased  responsi- 
bilities are  imposed  upon  them.  This  is  especially  so 
in  case  the  United  States  is  engaged  in  hostilities;  but 
also  in  wars  between  foreign  powers  the  consul  must 
be  on  the  alert  to  see  that  American  commerce  is  not 
interfered  with,  and  that  the  rules  of  neutrality  are 
observed. 

Consuls  of  the  United  States  and  of  other  powers 
residing  in  China,  Siam,  Korea,  and,  to  a  Hmited  extent, 
in  Turkey,  Persia,  the  Barbary  States,  and  in  one  or 
more  other  non-Christian  countries,  exercise  certain 
judicial  authority  conferred  upon  them  by  treaty  and 
regulated  by  the  statutes  of  the  United  States.  Until 
July  17,  1899,  Japan  was  included  in  the  list,  but  at 
that  date  by  treaty  stipulation  with  the  Christian  powers 
she  was  released  from  that  regime.  Under  the  system 
American  citizens  in  those  countries  possess  certain 
privileges  under  what  is  termed  "  exterritoriality."  It 
is  well  stated  in  the  British  act  conferring  power  to 
exercise  it,  as  follows  :  — 

"  That  it  is  and  shall  be  lawful  for  Her  Majesty  to 
hold,  exercise,  and  enjoy  any  power  and  jurisdiction 
which  Her  Majesty  now  hath  or  may  at  any  time  here- 
after have  within  any  country  or  place  out  of  Her  Ma- 


THE  CONSULAR  SERVICE  231 

jesty's  dominions,  in  the  same  and  as  ample  a  manner  as 
i£  Her  Majesty  bad  acquired  such  power  or  jurisdiction 
by  the  cession  or  conquest  of  territory."  ^ 

The  national  sovereignty  and  law  are,  by  this  and 
similar  acts  of  other  countries,  transferred  bodily  onto  a 
foreign  soil  and  made  applicable  to  citizens  or  subjects 
of  the  nationality  dwelling  there.  Under  this  jurisdic- 
tion are  regulated  their  rights  as  between  themselves, 
and  as  between  them  and  natives,  and,  with  certain 
restrictions,  between  them  and  resident  foreigners  of 
other  nationality.  Secretary  Frelinghuysen,  in  a  com- 
munication to  Congress,  arguing  for  a  continuance  of 
the  system  and  the  enlargement  of  existing  legislation, 
gave  some  reasons  growing  out  of  the  peculiar  laws  and 
customs  of  non-Christian  countries,  as  furnished  by  the 
American  representatives  in  those  countries.  The  min- 
ister to  Turkey,  in  giving  an  account  of  the  "  sacred 
law  "  which  controlled  the  administration  of  justice  in 
that  empire,  reports  :  — 

"  In  the  category  of  the  inadmissible  witnesses,  I  find 
the  following :  Players  of  backgammon  ;  though  chess- 
players are  admissible  under  certain  conditions,  such  as 
that  they  do  not  spend  all  their  time  at  the  game,  that 
they  do  not  play  for  money,  and  that  they  fail  not  in 
their  times  of  prayer  on  account  of  the  game.  So  wine- 
drinkers  and  pork-eaters,  because  of  the  prohibition  in 
the  Koran;  so  of  those  who  eat  bread  in  the  street;  so 
of  those  who  utter  blasphemies  against  Mahomet  and 
his  disciples ;  so  of  those  who  make  water  standing, 
because  in  doing  so  the  urine  may  spatter  upon  their 

»  For  British  act,  see  S.  Misc.  Doc.  No.  89,  47th  Cong.,  1st  Sess.  36. 


232  THE   PRACTICE    OF  DIPLOMACY 

legs,  and  they  be  made  unclean,  so  that  they  cannot  go 
into  a  mosque  for  prayers  :  so  Jews  may  testify  against 
Christians,  and  Christians  against  Jews,  and  foreigners 
against  non-Mussulmans;  but  under  this  permission  is 
couched  the  prohibition  forbidding  any  of  them  testify- 
ing against  a  Mussulman.  So  the  testimony  of  a  woman 
counts  for  but  half;  that  is  to  say,  two  women  are  re- 
quired to  make  one  witness." 

Mr.  Cushing,  the  first  American  minister  to  China, 
referring  to  the  non-Christian  countries,  wrote :  "  As  be- 
tween them  and  us,  there  is  no  community  of  ideas,  no 
common  law  of  nations,  no  interchange  of  good  offices ;  " 
and  he  stated  that  it  would  not  be  safe  to  commit  to 
them  the  lives  and  liberties  of  citizens  of  the  United 
States.  The  consul-general  at  Shanghai,  after  a  long 
official  residence  in  China,  reported  that  "  there  can  be 
no  doubt  that  the  state  of  the  Chinese  judicial  estab- 
lishment, as  it  affects  foreigners,  is  unsatisfactory.  No 
code  of  procedure,  worthy  to  be  called  such,  exists." 
He  also  speaks  of  the  prevailing  corruption  of  the  ma- 
gistrates and  other  officers  of  the  court.^  For  these  and 
other  reasons,  the  uniform  testimony  of  foreign  repre- 
sentatives has  been  that  the  exterritorial  system  should 
be  retained. 

The  British  government  has  provided  a  judicial  sys- 
tem for  the  administration  of  justice  in  these  countries, 
and  in  Egypt  an  international  court  is  maintained,  but 
such  duties  respecting  Americans  are  discharged  by  the 
consuls,  except  in  Egypt.  For  the  reason  that  the  con- 
suls are  absorbed  with  other  cares  and  in  most  cases 

1  S.  Misc.  Doc.  No.  89,  47th  Cong.,  1st  Sess.  2. 


THE  CONSULAR  SERVICE  233 

they  have  had  no  legal  or  judicial  experience,  it  has  been 
urged  upon  Congress  for  some  years  past  that  a  court 
should  be  organized,  at  least  in  the  Far  East,  to  admin- 
ister justice,  with  authority  to  hold  sessions  in  China, 
Korea,  and  Siam.^ 

Action  on  this  subject  was  finally  taken  by  the  Fifty- 
Ninth  Congress  in  respect  to  China,  by  the  creation  of 
a  United  States  court  for  that  country,  presided  over 
by  a  Federal  judge,  with  a  district  attorney,  clerk,  and 
the  other  usual  officers  of  such  a  court.  By  this  act 
the  consuls  still  have  original,  jurisdiction  in  minor  civil 
and  criminal  cases,  with  right  of  appeal  to  this  court. 
Sessions  of  the  court  are  to  be  held  at  Shanghai,  Canton, 
Tientsin,  and  Hankow.  In  addition  to  jurisdiction  in 
civil  and  criminal  suits,  the  court  has  supervision  of 
the  estates  of  deceased  Americans  in  China.  An  appeal 
lies  to  the  United  States  Circuit  Court  in  California.^ 
The  creation  of  this  court  will  relieve  the  minister  and 
consuls  in  China  from  a  great  burden  of  duties,  and 
it  is  expected  largely  to  promote  the  ends  of  justice. 

The  manner  in  which  exterritoriality  operates  in  China 
may  be  seen  from  an  extract  from  a  statement  made  by 
ex-Minister  Denby,  who  for  thirteen  years  exercised 
judicial  authority  on  appeal  from  the  consular  courts. 
He  says  :  "  Under  the  various  treaties  made  with  these 
Asiatic  powers  by  the  Christian  nations  of  the  world, 
what  is  called  ^  extra-territoriality '  prevails.    This  word 

1  For  historical  sketch  on  exterritoriality,  Foster's  American  Diplomacy 
in  the  Orient,  89  ;  S.  Misc.  Doc.  89,  47th  Cong.,  1st  Sess.  ;  for  laws  of 
United  States,  Rev.  Stat.  sees.  4083-4130. 

2  Act  of  Congress  of  June  30,  1906. 


234  THE  PRACTICE  OF  DIPLOMACY 

does  not  express  accurately  the  condition  to  which  it 
applies,  but  it  has  been  universally  adopted.  It  means 
that  the  foreigner  in  those  eastern  countries  is  governed 
by  his  own  laws.  If  he  commits  a  crime,  he  must  be 
tried  before  his  own  consul,  and  if  he  is  sued  for  debt, 
the  action  must  be  brought  before  his  own  consul.  The 
Chinese  courts  have  no  jurisdiction  to  hear  any  action 
or  proceeding  against  a  subject  or  citizen  of  the  treaty 
powers.  It  is  readily  to  be  seen  that  such  a  condition 
results  in  building  up  an  imperium  in  imperio  in 
every  locality  where  foreigners  have  collected  together. 
''  Take  the  British  concession  at  Shanghai,  for  exam- 
ple. It  is  a  magnificent  city  of  five  thousand  foreigners, 
and  two  hundred  and  fifty  thousand  natives.  It  lies 
near  the  mouth  of  the  Yang-tse,  and  it  will  be  the.  actual 
terminus  of  almost  every  railroad  in  China.  For  ship- 
ping it  is  the  fifth  port  in  the  world.  Its  people  are 
simply  'squatters.'  While  their  respective  governments 
control  them  individually,  municipally  the  people  of 
Shanghai  owe  no  allegiance  to  any  country.  All  that 
was  necessary  was  that  the  government  of  China  and 
the  representatives  of  the  treaty  powers  should  consent 
to  granting  a  charter  to  Shanghai,  and  thenceforth 
absolute  self-government  prevailed.  The  consul-general 
of  the  United  States  administers  the  ordinances  of  this 
municipal  council  under  the  construction  that  they  con- 
stitute the  common  law  of  the  locality,  he  having,  under 
the  statutes  of  the  United  States,  common  law,  ad- 
miralty, and  statutory  jurisdiction.  The  same  condition 
of  things  prevails  all  over  China  as  to  the  law  affecting 
foreigners." 


THE  CONSULAR  SERVICE  235 

Consuls  of  the  United  States  in  the  countries  named 
have  been  empowered  to  arraign  and  try  all  citizens  of 
the  United  States  charged  with  offenses  against  law, 
committed  in  the  country  where  the  consul  resides,  and 
to  sentence  them  to  death,  to  imprisonment,  or  other 
penalties.  The  exercise  of  this  judicial  authority  has 
been  seriously  called  in  question,  but  the  Supreme  Court 
has  held  that  the  government  of  the  United  States  has 
power  to  make  treaties  providing  for  the  exercise  of  judi- 
cial authority  in  other  countries  by  its  officers  appointed 
to  reside  therein,  and  that  the  provision  of  the  law 
for  the  trial  there  of  felonies  without  indictment  by  a 
grand  jury  and  trial  by  a  petit  jury  are  constitutional.^ 
Consuls  also  have  civil  jurisdiction  in  all  questions 
of  controversy  between  citizens  of  the  United  States, 
whether  of  property  or  of  person.  They  have  exer- 
cised jurisdiction  in  divorce  proceedings,  but  the  depart- 
ment has  expressed  the  opinion  that  their  authority  to 
solemnize  marriage  is  not  well  established  and  that  they 
should  not  perform  the  ceremony.  As  already  stated, 
the  judicial  powers  of  consuls  in  China  have  been  trans- 
ferred in  large  measure  to  the  new  United  States  court. 

The  foregoing  review  of  the  duties  of  an  American 
consul  shows  how  numerous  and  onerous  are  the  services 
required  of  him  and  what  varied  talents  are  called  into 
play  in  discharging  them.  He  is  made  by  law  the  foreign 
guardian  of  our  tariff  system,  of  American  shipping  and 
sailors,  the  protector  of  American  citizens  abroad ;  he 
becomes  a  material  factor  in  enforcing  our  immigration 
laws  and  excluding  undesirable  additions  to  our  popu- 

»  140  U.  S.  Supreme  Court  Reports,  453. 


236  THE  PRACTICE  OF  DIPLOMACY 

lation,  he  has  important  duties  to  discharge  in  respect 
of  our  quarantine  regulations,  and  to  his  vigilance  is 
in  large  measure  due  exemption  from  pestilence  and 
disease,  and  he  is  called  upon  to  make  frequent  and 
exhaustive  reports  upon  a  wide  scope  of  subjects.  And 
to  all  these  is  added,  in  Oriental  countries,  large  judi- 
cial and  semi-diplomatic  functions. 

Secretary  Frehnghuysen,  in  a  report  to  Congress  on 
the  consular  service,  referring  especially  to  the  varied 
duties  where  exterritorial  privileges  prevail,  cited  the 
duties  of  the  consul-general  at  Shanghai,  China,  as  fol- 
lows :  "  1st.  He  has  supervisory  control  over  all  consu- 
lates in  China.  2d.  Because  of  the  distance  from  the 
legation  at  Peking,  the  insufficient  means  of  communi- 
cation, especially  in  winter,  and  the  peculiar  powers  of 
the  local  government,  he  has  often  important  duties  to 
perform,  requiring  delicacy  and  tact.  3d.  With  the 
other  consular  representatives  he  participates  in  the  mu- 
nicipal government  of  the  foreign  settlement  with  a  very 
considerable  population,  and  containing  much  valuable 
property,  both  real  and  personal.  4th.  He  is  a  judge 
trying  civil  causes  in  which  Americans  are  defendants, 
and  trying  them  for  crime  sometimes  carrying  the  ex- 
treme penalty  of  the  law.  He  also  has  charge  of  the 
jail  in  which  American  prisoners  are  confined.  In  his 
judicial  capacity  he  is  judge  of  a  criminal  court,  of  a 
court  of  probate  and  divorce,  of  an  equity  and  of  a  nisi 
prius  court.  5th.  He  is  United  States  postmaster, 
handling  all  the  mails  arriving  at  Shanghai  for  citizens 
of  this  country,  either  officials  or  private  individuals. 
6th.  He  performs  the  duties  of  a  seaport  consulate,  viz. : 


THE  CONSULAR  SERVICE 


has  care  of  American  shipping,  guarding  the  interests 
of  master,  crew,  and  owners;  he  protects  the  revenue  of 
his  government  and  watches  and  strives  to  increase  the 
export  trade."  ^ 

I  need  add  nothing  further  to  make  it  apparent  that 
the  post  of  consul  of  the  United  States  is  one  of  large 
responsibilities,  demanding  varied  talent,  great  intelli- 
gence, and  unwearied  attention.  Prince  Talleyrand, 
speaking  at  a  time  when  the  scope  of  a  consul's  duties 
was  much  more  contracted  than  at  present,  and  re- 
ferring to  a  French  official  who  had  previously  held 
the  post  of  minister  at  two  European  courts  and  had 
accepted  the  post  of  French  consul-general  at  Milan, 
said  :  "  After  having  been  a  skillful  minister,  how  many 
things  one  has  to  know  besides  to  be  a  good  consul ;  for 
the  duties  of  a  consul  are  infinitely  varied.  They  are  of 
a  kind  very  different  from  those  of  other  agents  of  for- 
eign affairs ;  they  demand  a  mass  of  practical  knowledge 
for  which  a  special  education  is  necessary." 

From  the  fact  that  a  consul  is  not  a  diplomatic  offi- 
cer, it  follows  that  he  is  not  entitled  to  many  of  the 
immunities  which  are  conceded  to  the  latter  under  in- 
ternational law  and  usage.  He,  however,  enjoys  certain 
privileges  because  of  his  representative  character.  But 
as  these  have  not  been  universally  recognized,  and  the 
practice  and  legislation  of  different  countries  vary, 
many  of  these  privileges  have  been  specifically  secured 
by  consul  conventions  or  stipulations  in  commercial 
treaties.  For  instance,  the  United  States  has  treaties 
with  various  countries  whereby  consuls  are  reciprocally 
1  H.  R.  Ex.  Doc.  146,  48th  Cong.,  1st  Seas. 


238  THE  PRACTICE  OF  DIPLOMACY 

exempt  from  arrest  except  for  crimes;  from  the  obliga- 
tion to  appear  as  a  witness  in  court  (but  in  most  cases 
provision  is  made  that  the  deposition  may  be  taken  in 
the  consulate) ;  and  from  taxation,  unless  the  consul  en- 
gages in  business  or  owns  real  estate  in  the  country.  Ex- 
emption is  also  secured  by  treaties  from  military  service 
or  billeting,  and  the  inviolability  of  the  archives  and 
papers  of  the  consulate  are  guaranteed ;  but  these  priv- 
ileges would  be  generally  conceded  at  the  present  day  in 
the  absence  of  a  treaty  stipulation ;  as  also  would  the 
right  to  display  the  national  arms  and  flag,  although 
the  latter  is  forbidden  by  some  countries.  While  the 
foregoing  privileges  to  consuls  are  conceded  by  most 
countries  either  under  international  comity  or  treaty, 
Great  Britain  is  a  notable  exception.  That  government, 
while  claiming  the  most  favored  nation  treatment  for  its 
consuls  in  foreign  lands,  extends  to  foreign  consuls  in 
Great  Britain  no  other  privileges  than  those  granted  to 
a  private  individual.  Its  position  on  the  subject  is  that 
consuls  are  not  entitled  to  immunities  in  the  absence  of 
treaties,  and  that  the  government  has  no  power  to  ex- 
empt them  from  British  jurisdiction  without  a  special  act 
of  Parliament,  and  no  such  act  has  thus  far  been  passed. 
By  virtue  of  the  right  of  exterritoriality  consuls  in 
Oriental  countries  enjoy  most  of  the  immunities  of  di- 
plomatic representatives.  Much  the  same  rule  as  to  the 
right  of  asylum  is  applied  to  consulates  as  to  legations. 
In  the  United  States  the  rule  of  reciprocity  of  treatment 
is  observed  as  to  taxation  and  the  exemption  of  official 
supplies  from  customs  duties.  Consuls  are  entitled  to 
unrestricted  communication  with  their  own  government 


THE  CONSULAR  SERVICE  239 

in  time  of  war,  but  it  is  a  breach  of  privilege  to  allow 
the  consular  bag  to  be  used  by  the  hostile  authorities 
or  people.  The  suspected  infringement  of  this  privi- 
lege by  foreign  consuls  residing  in  the  Southern  States 
during  our  Civil  "War  was  the  occasion  of  much  com- 
plaint.  A  privilege  guaranteed  to  foreign  consuls  by 
the  Federal  Constitution  is  that  suits  against  them  must 
be  prosecuted  in  the  Federal,  not  State,  courts. 

The  government  of  the  United  States  has  not  failed 
to  recognize  the  privileges  of  resident  foreign  consuls, 
and  a  number  of  instances  may  be  cited  where  repara- 
tion has  been  made  for  infringement  of  their  rights  by 
local  authorities. 

A  consul  of  the  United  States  is  under  the  same 
interdiction  as  stated  respecting  a  diplomatic  represent- 
ative, from  corresponding  with  the  press  or  discussing 
in  public  addresses  the  political  affairs  of  the  country 
to  which  he  is  accredited  or  of  his  own. 

The  consular  service  of  the  United  States  has  been 
the  subject  of  much  criticism,  and  various  attempts 
have  been  made  to  secure  Congressional  action  for  its 
reform.  Successive  Presidents  and  secretaries  of  state 
have  from  time  to  time  iu*ged  legislation  for  the  improve- 
ment of  the  service,  in  an  increase  of  salaries,  in  the 
requirements  for  admission,  and  in  the  tenure  of  office; 
and  the  commercial  bodies  throughout  the  country, 
with  great  unanimity,  have  called  for  such  reform,  but 
thus  far  with  little  success.  The  act  of  the  Fifty-ninth 
Congress,  adding  to  the  service  five  inspectors  of  con- 
sulates, has  already  been  cited.  The  bill  as  originally 
introduced  provided  for  the  most  of  those    improve- 


240  THE  PRACTICE  OF  DIPLOMACY 

ments ;  but  they  were  all  stricken  out,  •with  the  excep- 
tion of  the  increase  of  salaries.  As  the  offices  are  still 
subject  to  the  "  spoils  system,"  the  chief  effect  of  the 
increase  of  salaries  will  be  to  add  to  the  number  and 
voracity  of  the  partisan  office-seekers. 

The  three  essential  features  which  should  be  adopted 
to  make  the  reform  effective  are  :  First,  the  exemption  of 
the  appointments  from  political  influence ;  second,  the 
permanence  of  the  service;  third,  a  system  of  promotion. 
While  Congress  is  apparently  unwilling  to  bring  about 
these  reforms  by  legislation,  because  of  its  attachment 
to  "  the  spoils  system,"  it  is  entirely  within  the  power  of 
the  executive  department  of  the  government  to  put  in 
operation  all  three  of  these  measures.  No  president  has 
yet  had  the  courage  to  discard  political  influence  in  the 
appointments,  but  efforts  have  been  made  to  secure  a 
better  fitted  class  of  consuls  by  subjecting  appointees  to 
an  examination,  and  in  adopting  a  system  of  promotion. 

In  1895  President  Cleveland  proclaimed  a  series  of 
rules, ^  prescribing  a  method  of  filling  vacancies  by 
promotion  and  by  subjecting  persons  appointed  to  an 
examination  before  being  commissioned.  Much  of  the 
effectiveness  of  these  rules  was  diminished  by  the  fact 
that  their  promulgation  had  been  preceded  by  an  almost 
entire  change  in  the  personnel  of  the  consular  service 
on  purely  partisan  grounds.  It  is  stated  that  the  year 
following  the  enforcement  of  those  rules,  of  thirteen 
candidates  for  consular  appointment,  eight  passed  the 
examination  and  five  were  rejected. 

A  new  administration  came  into  power  in  1897,  and 

»  9  Presidents'  Messages,  624,  639. 


THE  CONSULAR  SERVICE  241 

the  "clean  sweep"  of  the  Cleveland  regime  was  fol- 
lowed by  that  of  President  McKinley.  Out  of  a  total 
of  272  salaried  consuls,  238  were  changed.  The  rules 
of  the  preceding  administration,  slightly  modified,  were 
nominally  continued,  and  it  is  stated  that  out  of  112 
candidates  for  appointment  the  year  following,  only  one 
failed  to  pass  the  examination.^  Such  a  record  for  two 
succeeding  administrations  of  different  parties  does  not 
strongly  commend  this  method  of  reform  by  executive 
action. 

The  rules  promulgated  by  Presidents  Cleveland  and 
McKinley  have  been  strengthened,  upon  the  recom- 
mendation of  Secretary  Root,  by  a  recent  order  of  Pre- 
sident Roosevelt  regulating  the  admissions  to  and  pro- 
motions in  the  consular  service,  in  which  it  is  designed 
to  supply  the  omissions  of  Congress  in  the  late  consular 
act.  This  executive  order  prescribes  that  all  vacancies 
in  the  of&ce  of  consul-general  and  of  consul,  except  in 
the  two  lower  classes,  shall  be  filled  by  promotion  from 
the  lower  grades  ;  that  vacancies  in  the  two  lower  classes 
shall  be  filled  either  (a)  by  promotion  of  consuls,  consu- 
lar clerks,  vice  or  deputy  consuls,  or  consular  agents ;  or 
(b)  by  new  appointments  of  candidates  who  have  passed 
a  satisfactory  examination ;  that  the  subjects  for  exami- 
nation shall  include  at  least  one  modern  language  other 
than  English ;  and  that  neither  in  the  designation  for 
examination  or  appointment  will  the  poHtical  afiiliations 
of  the  candidate  be  considered.^ 

This  method,  if  it  could  be  made  permament,  would 

*  For  facts  above  stated,  see  vol.  35  Century  Magazine  (1898-99),  604. 
2  Executive  Order,  June  27,  1906. 


242  THE   PRACTICE   OF   DIPLOMACY 

effect  a  long-desired  reform  in  the  consular  service ; 
but  it  has  the  defects  of  not  making  the  examinations 
competitive  and  of  having  been  put  in  operation  after 
the  consulates  had  been  filled,  in  large  measure,  by 
the  partisans  of  the  administration ;  and  there  is  no 
assurance  that  the  order  will  be  executed  in  its  true 
spirit  by  a  succeeding  administration,  especially  if  it 
should  be  of  an  opposing  party.  Executive  orders  are 
subject  to  executive  repeal.  The  only  hope  for  real  re- 
form is  by  removing  the  appointments  from  political 
influence.  Not  until  the  executive  orders  shall  be  put 
into  the  form  of  legislation  by  Congress,  in  response  to 
a  strong  popular  demand,  will  real  and  permanent  reform 
in  the  consular  service  of  the  United  States  be  attained. 


CHAPTER  XII 

NEGOTIATION   AND   FRAMING   OF   TREATIES 

The  negotiation  of  treaties  is  the  highest  function 
which  a  diplomatic  representative  is  called  upon  to  dis- 
charge, and  the  one  which  requires  the  greatest  skill 
and  circumspection  on  his  part.  Treaties  cover  a  great 
variety  of  subjects.  The  peculiar  relations  of  royal  pre- 
rogative, consanguinity,  and  marriage  of  the  European 
monarchies  give  rise  to  a  class  of  treaties  with  which 
the  United  States  has  nothing  to  do,  but,  with  this 
exception,  an  enumeration  of  the  character  of  conven- 
tions which  this  country  has  celebrated  with  various 
nations  will  indicate  the  scope  of  subjects  covered  by 
international  compacts,  which,  it  will  be  seen,  embrace 
more  than  a  score  in  number. 

The  most  important  and  numerous  of  these  are  trea- 
ties of  (1)  amity,  commerce,  and  navigation,  and  under 
these  may  be  embraced  the  special  treaties  as  to  (2) 
consuls,  (3)  free  navigation  of  rivers,  (4)  trade-marks, 
(5)  fisheries,  (6)  shipping,  and  (7)  commercial  recipro- 
city. Treaties  of  (8)  peace  may  be  next  mentioned,  of 
which,  in  its  existence  of  one  hundred  and  thirty  years, 
the  United  States  has  been  called  upon  to  make  four. 
There  has  been  only  one  treaty  of  (9)  alliance,  that 
with  France,  and  it  was  terminated  more  than  a  cen- 
tury ago.    Then  follow  treaties  for  the  (10)  cession  of 


244  THE  PRACTICE  OF  DIPLOMACY 

territory,  (11)  extradition,  (12)  naturalization,  (13)  arbi- 
tration, (14)  settlement  of  claims,  (15)  immigration, 
(IG)  boundaries,  and  (17)  ship-canals.  To  these  are  to 
be  added  a  number,  the  like  o£  which  with  the  march 
of  time  are  no  longer  required,  as  those  for  the  (18) 
suppression  of  the  slave  trade,  (19)  abolition  of  sound 
and  strait  dues,  (20)  of  droit  d'aubaine.  The  fore- 
going are  the  classes  of  treaties  entered  into  between 
the  United  States  and  individual  nations,  but  there 
are  others  in  which  many  nations  join,  such  as  the  (21) 
Postal  Union,  (22)  for  the  protection  of  industrial  pro- 
perty, as  patents  and  the  like,  (23)  submarine  cables, 
(24)  observance  of  rules  of  war,  (25)  for  the  creation 
of  the  Hague  Arbitration  Tribunal,  (26)  for  the  estab- 
lishment of  an  international  bureau  of  weights  and 
measures,  and  various  others  of  like  character.  In  addi- 
tion to  these  there  are  still  other  international  compacts 
effected,  as  we  shall  see  later,  by  means  of  reciprocal 
legislation  for  the  protection  of  copyrights,  commercial 
and  shipping  privileges,  and  other  matters. 

As  indicating  the  broad  scope  of  this  branch  of 
international  law  and  comity,  it  may  be  stated  that  the 
treaties  of  the  United  States  with  other  nations  now  in 
force  exceed  three  hundred  in  number,  and  it  is  esti- 
mated that  those  in  force  between  the  various  nations 
of  the  earth  is  not  less  than  eight  thousand.  Verily 
the  international  code  of  the  world  constitutes  a  pon- 
derous compilation. 

In  addition  to  the  treaties  themselves  there  are  va- 
rious documents  connected  with  or  having  relation  to 
them  which  it  may  be  well  to  notice  in  this  connection. 


NEGOTIATION  AND  FRAMING  OF  TREATIES      245 

Capitulatio7is  relate  especially  to  immunities  or  privi- 
leges wanted  to  Christians  resident  in  the  Turkish 
empire ;  they  are  unilateral  engagements  which,  in  the 
process  of  time,  have  been  made  applicable  to  the  citi- 
zens and  subjects  of  all  foreign  powers,  under  "the 
most  favored  nation  "  claim,  and  now  have  the  validity 
of  treaties.  The  same  term  was  applied  to  the  conven- 
tions for  the  enlistment  of  Swiss  guards  taken  into  the 
service  of  European  powers.  A  concordat  is  a  treaty  or 
agreement  between  Catholic  powers  and  the  Holy  See, 
and  reofulates  the  relations  between  church  and  state. 

Preliminaries  of  ])eace  are  articles  or  stipulations 
agreed  upon  between  nations  at  war  to  regulate  their 
relations,  pending  a  definite  settlement  of  their  disputes. 
They  generally  result  in  an  armistice  or  cessation  of 
hostilities.  The  provisional  agreement  of  1782  between 
the  American  colonies  and  Great  Britain  became  the 
permanent  treaty  of  peace,  because  of  the  comprehensive 
scope  of  its  provisions  and  of  the  failure  of  the  negotia- 
tors to  adjust  any  other  of  the  matters  in  dispute.  The 
protocol  agreed  upon  between  Secretary  of  State  Day 
and  Ambassador  Cambon,  on  August  12,  1898,  for  an 
armistice  in  the  Spanish  war,  was  of  this  character.  In  it 
certain  points  were  agreed  upon  to  control  the  negotia- 
tors of  the  permanent  treaty  of  peace.  A  declaration 
of  war  in  former  times  was  often  a  formal  document,  in 
which  the  head  of  the  nation  entering  upon  an  armed 
conflict  set  forth  the  reasons  which  led  to  his  act.  The 
practice  has  in  great  measure  fallen  into  disuse,  and 
in  many  recent  instances  no  formal  declaration  of  war 
was  made ;   but  there  are  certain  declarations  or  pro- 


246  THE   PRACTICE  OF  DIPLOMACY 

clamations  which  are  usually  required,  such  as  notice  of 
blockade,  etc.  A  declaration  of  war  sometimes  assumes 
the  form  of  a  manifesto^  but  the  latter  is  more  often 
applied  to  the  signed  declarations  of  a  sovereign  or 
diplomatic  representative  setting  forth  the  motives  for 
any  particular  act  or  line  of  policy.  To  this  class  be- 
longs the  Ostend  Manifesto  of  Ministers  Buchanan, 
Mason,  and  Soule,  published  in  1854,  already  noticed, 
setting  forth  the  policy  of  the  United  States  toward 
Cuba.  A  cartel  is  an  agreement  between  belligerents 
as  to  the  conditions  of  war,  and  of  late  it  has  been 
exclusively  applied  to  arrangements  for  the  exchange 
of  prisoners.  An  idtimatum  is  the  final  decision  of 
one  of  the  parties  to  a  negotiation  or  dispute,  and  must 
be  accepted  or  rejected  as  it  stands. 

K  proposal  is  a  document  or  offer  submitted  to  a  diplo- 
matic representative  respecting  matters  outside  of  his 
instructions  or  powers,  and  which  he  receives  ad  refer- 
enduni.  He  may  express  no  opinion  upon  it  in  trans- 
mitting it  to  his  government,  or,  if  it  meets  with  his 
individual  approval,  he  receives  it  suh  spe  rati  —  in  hope 
of  ratification  by  the  home  government.  A  protocol  is 
an  of&cial  statement  of  the  proceedings  of  conferences 
between  plenipotentiaries,  or  a  document  by  which  a 
fact  is  described  in  detail,  and  which  is  signed  by  the 
parties  on  each  side.  A  note  verbal  is  an  unsigned 
paper  explaining  details,  giving  a  resume  of  conversa- 
tions or  of  events,  or  indicating  possible  proposals.  A 
memorandum  or  memoire  has  much  the  same  character, 
giving  a  summary  of  the  state  of  a  question  or  a  justi- 
fication of  a  decision  adopted. 


NEGOTIATION  AND  FRAMING  OF  TREATIES      247 

We  come  now  to  consider  the  parties  to  the  negotia- 
tion of  a  treaty.  These  parties  are  usually  the  secretary 
of  state  or  minister  of  foreign  affairs  and  the  resident 
ambassador  or  minister  of  the  country  concerned.  Of 
late  years  it  has  been  the  general  policy  of  the  United 
States  to  negotiate  its  treaties  through  the  secretary  of 
state,  as  he  usually  has  a  wider  comprehension  of  the 
effects  of  treaty  stipulations,  and  is  in  a  better  position 
to  understand  the  sentiments  of  the  country;  but  to 
this  rule  many  exceptions  exist.  There  are  notable  in- 
stances in  our  history  where  special  envoys  have  been 
sent  to  a  foreign  court  to  negotiate,  even  though  our 
country  was  represented  there  by  able  diplomats.  Sev- 
eral such  cases  have  already  been  cited,  such  as  that 
of  the  mission  of  Chief  Justice  Jay  to  London,  and  Mr. 
Monroe  to  Paris  respecting  the  Louisiana  cession.  Sim- 
ilar action  has  been  taken  by  the  British  government, 
as  in  sending  Lord  Ashburton  to  Washington  in  1842 
as  a  special  plenipotentiary  to  negotiate  with  Secretary 
Webster  the  treaty  on  the  northeastern  boundary,  and 
Lord  Elgin,  in  1854,  to  bring  about  and  sign  the  Cana- 
dian reciprocity  treaty.  We  have  also  seen  that  it  has 
been  the  practice  of  our  government  to  send  abroad 
commissions  of  prominent  statesmen  to  negotiate  treaties 
in  times  of  emergency,  such  as  the  making  of  peace. 

A  representative  to  negotiate  a  treaty  must  be  clothed 
with  what  are  termed  "full  powers,"  Although  an 
ambassador  is  supposed  to  represent  the  person  of  his 
sovereign  and  is  sent  abroad  with  credentials  which  are 
termed  "  extraordinary  and  plenipotentiary,"  he  does 
not    ordinarily   make   a   treaty   without   special  "  full 


248  THE  PRACTICE  OF  DIPLOMACY 

powers  "  for  the  particular  negotiation  he  has  in  hand ; 
and  the  same  disabiHty  rests  upon  the  secretary  of  state 
or  minister  of  foreign  affairs,  who  must  have  sj)ecial 
credentials  for  each  treaty  negotiated.  John  Jay  when 
he  went  to  London  in  1794,  bore  with  him  four  "  full 
powers"  or  credentials,  covering  all  the  subjects  in- 
trusted to  him.  These  precautions  indicate  the  great 
care  and  precision  exacted  by  governments  in  treaty 
negotiations. 

Where  representatives  are  sent  to  a  conference  or 
commissioners  are  sent  to  meet  like  commissioners,  they 
are  not  provided  with  credentials  to  the  head  of  the 
State,  but  are  given  full  powers,  which  are  exhibited  at 
the  first  assembling  and  are  passed  under  critical  scru- 
tiny. During  the  Chinese-Japanese  war  of  1894-95  the 
Chinese  government,  with  the  assent  of  Japan,  sent 
commissioners  to  the  latter  country  to  negotiate  for 
peace.  The  conference  for  negotiations  was  formally 
opened  by  the  exhibition  of  the  credentials  of  the  com- 
missioners of  each  government.  At  the  second  meeting, 
the  following  day,  the  Chinese  commissioners  were 
informed  that  their  credential  letters  did  not  contain 
full  power  to  conclude  and  sign  a  treaty,  that  no  further 
conferences  would  be  held  with  them,  and  that  they 
must  return  to  China.  It  became  necessary  to  send  out 
a  new  Chinese  commissioner,  in  the  person  of  Li  Hung 
Chang,  occasioning  two  months'  delay  and  further  mil- 
itary disasters  to  China. 

A  short  time  before  the  Anglo-American  joint  high 
commission  of  1898  convened,  Newfoundland  was  ad- 
mitted to  the  negotiations  after  the  American  commis- 


NEGOTIATION   AND   FRAMING   OF  TREATIES      249 

sioners  had  received  their  credentials.  When  the  con- 
ferences were  opened  by  the  exchange  of  the  full  powers 
it  was  found  that  those  of  the  Americans  did  not  men- 
tion Newfoundland.  New  credential  letters  had  to  be 
obtained  from  Washington,  but  this  did  not  delay  the 
negotiations. 

Negotiators  are  possessed  of  the  views  and  wishes  of 
their  government  by  personal  interviews  with  the  head 
of  the  State  and  the  chief  of  the  foreign  office,  and,  in 
addition,  are  usually  furnished  written  instructions;  but 
they  are  in  most  cases  personally  conversant  with  the 
questions  at  issue.  Besides,  in  this  day  of  quick  com- 
munication, they  readily  learn  the  views  of  their  govern- 
ment on  any  new  phase  as  it  arises.  During  the  negoti- 
ations of  the  American  and  Spanish  peace  commissioners 
at  Paris  in  1898,  the  American  commissioners  were  in 
direct  communication  by  cable  with  the  President  and 
secretary  of  state.  Upon  the  adjournment  of  each  day's 
session,  where  circumstances  required  it,  a  report  was 
telegraphed  to  Washington,  and  the  President  was  thus 
enabled  to  send  further  instructions  at  every  step  of 
the  negotiations.^ 

Governments  in  the  past  have  been  known  to  supply 
their  neo-otiators  with  two  sets  of  instructions  —  the  one 
to  show  their  opposing  colleagues,  if  need  occurred,  and 
the  other  for  their  confidential  guidance ;  but  the  practice 
is  believed  to  be  falling  into  desuetude.  The  protocol 
under  which  the  Anglo-American  joint  high  commission 
was  constituted  contained  a  provision  that  the  instruc- 
tions given  by  the  respective  governments  to  their  com- 

1  For  correspondence,  S.  Doc.  148,  66  Cong.,  2d  Sess. 


250  THE  PRACTICE  OF  DIPLOMACY 

missioners  should  be  exchanged  by  the  two  governments 
before  the  meeting  of  the  commission.  This  unusual 
provision  was  due  mainly  to  the  fact  that  the  protocol 
named  eleven  different  subjects  for  the  consideration  of 
the  commission,  and  it  was  felt  that  such  a  course  would 
facihtate  the  deHberations. 
f~  The  observations  already  made  in  regard  to  the  use 
of  language  in  diplomatic  correspondence  applies  to 
treaties,  to  wit :  that  two  centuries  and  more  ago  the 
language  of  treaties  was  the  Latin,  that  afterwards  the 
French  was  in  universal  use,  but  that  at  present  almost 
all  governments  use  their  own  language.  In  the  early 
years  of  our  history  many  of  our  treaties  were  in  French 
only ;  this  was  the  case  as  late  as  1824,  in  respect  of 
our  treaty  with  Russia,  and  our  treaty  of  1830  with 
Turkey. 

A  treaty  has  as  many  counterparts  as  there  are  con- 
tracting parties.  Our  treaties  with  Great  Britain  have 
only  one  version.  With  nations  using  different  lan- 
guages the  text  in  both  appears  in  parallel  columns  on 
the  same  page  or  on  opposite  confronting  pages.^  If 
three  or  more  nations  unite  in  a  treaty,  the  text  usually 
is  in  French.  The  utmost  care  is  observed  in  writing 
the  counterparts,  the  phraseology  in  the  two  languages 
is  made  as  nearly  identical  as  possible,  and  conformity 

1  The  first  treaty  of  the  United  States  with  a  government  of  the  Far 
East  was  that  with  Siam  of  1833.  The  preamble,  speaking  of  the  treaty, 
says  :  "  One  original  is  written  in  Siamese,  the  other  in  English  ;  but  as 
the  Siamese  are  ignorant  of  English,  and  the  Americans  of  Siamese,  a 
Portuguese  and  a  Chinese  translation  are  annexed,  to  serve  as  a  testimony 
to  the  contents  of  the  treaty.  The  writing  is  of  the  same  tenor  and  date 
in  all  the  languages  aforesaid." 


NEGOTIATION  AND  FRAMING  OF  TREATIES      251 

of  punctuation  is  sought.  In  treaties  where  a  large 
number  of  nations  join,  the  copies  for  signature  are 
sometimes  printed.  In  every  foreign  office  the  duty  of 
preparing  and  examining  the  counterparts  of  treaties  is 
assigned  to  a  particular  bureau,  and  in  some  foreign 
offices  a  bureau  is  maintained  for  this  special  service. 

The  practice  of  the  alternat  in  treaties  is  now  ob- 
served by  all  nations,  that  is,  the  right  of  each  chief  of 
state  to  have  his  name  and  the  name  of  his  plenipo- 
tentiary appear  first  in  the  preamble,  and  the  name  of 
his  nation  first  in  the  body  of  the  treaty  in  the  counter- 
part which  he  retains.  In  former  times  the  more  power- 
ful or  more  ancient  nations  claimed  the  right  to  be  first 
named  in  treaties,  and  not  until  the  nineteenth  century 
was  it  abandoned.  France  first  recognized  with  the 
United  States  the  alternat  in  its  treaty  of  1803  (the 
Louisiana  purchase).  Great  Britain  refused  to  concede 
it  in  the  treaty  of  peace  of  1814  and  in  anterior  con- 
ventions, but  upon  the  insistence  of  our  government 
yielded  it  in  the  treaty  of  1815  and  thenceforward.  It 
was  first  conceded  by  Spain  in  the  treaty  of  1819.  The 
Spanish  negotiator,  in  consenting,  intimated  that  on 
signing  he  might  deliver  a  protocol  against  its  use  being 
made  a  precedent  for  the  future,  whereupon  the  secre- 
tary of  state,  the  stout  John  Quincy  Adams,  informed 
him  that  the  United  States  would  never  make  a  treaty 
with  Spain  without  it. 

The  j^reamhle  to  a  treaty  contains  the  names  or  titles 
of  the  nations  celebrating  it  and  the  names  and  titles  of 
the  negotiators  who  sign  it.  With  European  and  Ori- 
ental nations  these  titles  are  often  of  great  length  and 


252  THE  PRACTICE   OF   DIPLOMACY 

set  forth  in  much  detail.  The  better  and  prevaiHng 
practice  in  the  United  States  is  to  omit  all  titles,  except 
"where  the  negotiator  is  the  secretary  of  state.  The  pre- 
amble should  also  state  in  general  terms  the  subject 
matter  of  the  convention.  It  also  often  contains  the 
motives  or  intentions  of  the  contracting  parties,  and  this 
has  in  many  instances  given  occasion  for  the  use  of 
very  florid  and  peculiar  language. 

It  was  formerly  the  universal  practice  to  introduce 
the  preamble  with  a  solemn  religious  asseveration  or 
divine  invocation.  The  United  States  in  this,  as  we  have 
seen  in  other  diplomatic  matters,  in  its  earlier  history 
accepted  and  followed  the  existing  practice.  In  the 
treaty  of  peace  with  Great  Britain  of  1783,  which 
secured  our  independence,  the  preamble  opens  with 
these  words :  "  In  the  name  of  the  Most  Holy  and  Un- 
divided Trinity."  It  illustrates  the  inaptness  of  the  use 
of  such  an  invocation  when  it  is  stated  that  of  the  three 
American  negotiators  of  that  treaty,  Adams,  Franklin, 
and  Jay,  the  latter  was  the  only  one  who  accepted  the 
dogma  of  the  Trinity.  The  same  words  appear  in  the 
British  treaty  of  1822.  The  treaties  with  Russia  of 
1824  and  1832  use  the  same  invocation,  as  also  that 
with  Portugal  of  1840.  The  treaty  of  peace  with  Mexico 
of  1848  begins :  ''  In  the  name  of  Almighty  God ; "  and 
these  words  are  repeated  in  the  treaty  of  1853.  That 
with  Costa  Rica  of  1851  has :  ^^  In  the  name  of  the  Most 
Holy  Trinity,"  and  similar  language  is  employed  in 
treaties  with  other  Spanish- American  countries.  These 
relate  to  the  compacts  with  Christian  nations.  The  lan- 
guage of  our  conventions  with  some  of  the  Moham- 


NEGOTIATION  AND  FRAMING  OF  TREATIES      253 

medan  states  is  more  expressive  and  extravagant.  That 
with  Tunis  (1797)  has  the  following  preamble  :  "  God 
is  infinite.  Under  the  auspices  of  the  greatest,  the  most 
powerful  of  all  the  Princes  of  the  Ottoman  nation  who 
reigns  upon  the  earth,  our  most  glorious  and  most 
august  Emperor,  who  commands  the  two  lands  and  the 
two  seas,  Selim  Kan,  the  victorious  son  of  the  Sultan 
Mustafa,  whose  realm  may  God  prosper  until  the  end 
of  ages,  the  support  of  kings,  the  Seal  of  Justice,  the 
Emperor  of  Emperors. 

"  The  Most  Illustrious  and  Most  Magnificent  Prince, 
Hamouda  Pacha  Bey,  who  commands  the  Ogdiak  of 
Tunis,  the  abode  of  happiness,  .  .  . ;  and  the  Most  Dis- 
tinguished and  Honored  President  of  the  Congress  of 
the  United  States  of  America,  the  most  distinguished 
among  those  who  profess  the  religion  of  the  Messiah, 
of  whom  may  the  end  be  happy." 

This  language,  however,  appears  tame  beside  that 
of  some  other  similar  Mohammedan  documents.  As  an 
instance  of  these,  I  give  extracts  from  the  French  capit- 
ulation of  1740,  the  provisions  of  which  have  been 
extended  to  the  other  Christian  powers  having  relations 
with  Turkey,  and  which  has  peculiar  interest  for  the 
United  States  because  it  is  still  in  force  and  appealed  to 
by  American  ministers  for  the  protection  of  their  coun- 
trymen in  Turkey.  The  preamble  to  this  capitulation 
is  quite  lengthy,  and  I  can  only  quote  it  in  part,  as 
follows :  — 

"  The  Emperor  Sultan  Mahmoud,  son  of  the  Sultan 
Moustapha,  always  victorious. 

"  This  is  what  is  ordered  by  this  glorious  and  impe- 


254  THE  PRACTICE  OF  DIPLOMACY 

rial  sign,  conqueror  of  the  world,  this  noble  and  sublime 
mark,  the  efiBcacy  of  which  proceeds  from  the  divine 
assistance. 

"  I,  who  by  the  excellence  of  the  infinite  favors  of 
the  Most  High,  and  by  the  eminence  of  the  miracles 
filled  with  benediction  of  the  chief  of  the  prophets  (to 
whom  be  the  most  ample  salutations,  as  well  as  to  his 
family  and  his  companions),  am  the  Sultan  of  the  glori- 
ous Sultans  ;  the  Emperor  of  the  powerful  Emperors  ; 
the  distributor  of  crowns  to  the  Chosroes  who  are  seated 
upon  thrones ;  the  shade  of  God  upon  earth,  the  ser- 
vitor of  the  two  illustrious  and  noble  towns  of  Mecca 
and  Medina,  august  and  sacred  places,  where  all  Mussul- 
mans offer  up  their  prayers ;  the  protector  and  master 
of  holy  Jerusalem ;  the  sovereign  of  the  three  great 
towns  of  Constantinople,  Adrinople  and  Brusa,  as  also 
of  Damascus,  the  odor  of  Paradise ;  of  Tripoli  in  Syria  j 
of  Egypt,  the  rarity  of  the  century,  renowned  for  its 
delights ;  of  all  Arabia ;  of  Africa ;  of  Barca  .  .  . 
[and  eight  other  cities]  ;  particularly  of  Bagdad,  cap- 
ital of  the  Caliphs;  of  Erzeroum  the  delicious  .  .  . 
[and  eleven  other  places]  ;  of  the  isles  of  Morca,  Candia, 
Cyprus,  Chio,  and  Rhodes ;  of  Barbary  and  Ethiopia  ; 
of  the  war  fortresses  of  Algiers,  Tripoli  and  Tunis ;  of 
the  isles  and  shores  of  the  White  and  the  Black  Sea ;  of 
the  country  of  Natolia  and  the  kingdoms  of  Roumelia ; 
of  all  Kurdistan  and  Greece ;  of  Turcomania,  Tartary, 
Circassia,  Cabarta  and  Georgia  ;  of  the  noble  tribes  of 
Tartars,  and  of  all  the  hordes  which  depend  thereon ; 
of  Caffa  and  other  surrounding  districts ;  of  all  Bosnia 
and  its  dependencies ;  of  the  fortress  of  Belgrade,  place 


NEGOTIATION  AND  FRAMING  OF  TREATIES      255 

of  war  5  of  Servia  and  also  of  the  fortresses  or  castles 
which  are  there ;  of  the  countries  of  Albania ;  of  all 
Walachia  and  Moldavia,  and  of  the  forts  and  battle- 
ments which  are  in  those  provinces ;  possessor,  finally, 
of  a  vast  number  of  towns  and  fortresses,  the  names  of 
which  it  is  unnecessary  to  enumerate  and  boast  of  here ; 
I,  who  am  the  Emperor,  the  asylum  of  Justice,  and  the 
King  of  Kings,  the  center  of  victory,  the  Sultan  son  of 
Sultans,  the  Emperor  Mahmoud,  son  of  Sultan  Mou- 
stapha,  son  of  Sultan  Mohammed ;  I,  who,  by  my 
power,  origin  of  fehcity,  am  ornamented  with  the  title 
of  Emperor  of  the  two  Earths,  and,  to  fill  up  the  glory 
of  my  Caliphat,  am  made  illustrious  by  the  title  of  Em- 
peror of  the  two  seas." 

There  ends  the  description  and  titles  of  the  Turkish 
monarch.  The  document  then  turns  westward  and 
begins  to  designate  the  Kmg  of  France,  who  is  cata- 
logued as  follows  :  "  The  glory  of  the  great  princes  of 
the  faith  of  Jesus :  the  highest  of  the  great  and  the 
magnificent  of  the  religion  of  the  Messiah ;  the  Arbi- 
trator and  the  Mediator  of  the  affairs  of  Christian 
nations ;  clothed  with  the  true  marks  of  honor  and  of 
dignity ;  full  of  grandeur,  of  glory  and  of  majesty ;  the 
Emperor  of  France  and  of  the  other  vast  kingdoms 
which  belong  thereto  ;  our  most  magnificent,  most  hon- 
ored, sincere  and  ancient  friend,  Louis  XV,  to  whom  may 
God  accord  all  success  and  happiness,  having  sent  to 
our  august  Court,  which  is  the  seat  of  the  Caliphat,  a 
letter  containing  evidences  of  the  most  perfect  sincer- 
ity, and  of  the  most  particular  affection,  candor  and 
straightforwardness  3  and  the  said  letter  being  destined 


256  THE  PRACTICE  OF  DIPLOMACY 

to  our  Sublime  Porte  of  felicity,  which  by  the  infinite 
goodness  of  the  incontestably  majestic  Supreme  Being 
is  the  asylum  of  the  most  magnificent  Sultans  and  of 
the  most  respectable  Emperors ;  the  model  of  Christian 
Seigneurs,  able,  prudent,  esteemed  and  honored  minis- 
ter, Louis,  Marquis  de  Villeneuve,  his  counselor  of 
State,  and  his  ambassador  to  our  Porte  of  felicity  (may 
the  end  thereof  be  filled  up  with  joy),  has  demanded 
the  permission  to  present  and  hand  in  the  aforesaid 
letter,  which  has  been  granted  to  him  by  our  imperial 
consent,  conformably  to  the  ancient  usage  of  our  Court : 
and  consequently  the  said  ambassador,  having  been  ad- 
mitted before  our  imperial  throne,  surrounded  with  fight 
and  glory,  he  has  given  the  aforesaid  letter,  and  has 
been  witness  of  our  Majesty  in  participating  in  our 
power  and  imperial  grace ;  and  then  the  translation  of 
its  loving  meaning  has  been  presented,  according  to 
the  ancient  custom  of  the  Ottomans,  at  the  foot  of 
our  sublime  throne,  by  the  channel  of  the  most  hon- 
orable El  Hadji  Mehemmed  Pacha,  our  first  Minister ; 
the  absolute  interpreter  of  our  ordinances;  the  orna- 
ment of  the  world  ;  the  preserver  of  good  order  amongst 
peoples ;  the  ordainer  of  the  grades  of  our  empire  ;  the 
instrument  of  the  glory  of  our  crown ;  the  road  of  the 
grace  of  royal  majesty  ;  the  very  virtuous  Grand  Vizier ; 
very  venerable  and  fortunate  minister,  lieutenant-gen- 
eral, whose  power  and  prosperity  may  God  cause  to  tri- 
umph and  to  endure." 

Then  begin  the  provisions  of  the  treaty  or  capitula- 
tion, which  goes  on  through  eighty-five  articles^  and 

*  For   historical    sketch  of    Turkish  Capitulations,  see  Van   Dyck's 


NEGOTIATION   AND   FRAMING   OF  TREATIES      257 

ends  with  these  words :  "  On  the  part  of  our  imperial 
majesty  I  engage  myself,  under  our  most  sacred  and 
most  inviolable  august  oath,  both  for  our  sacred  impe- 
rial person,  and  for  our  august  successors,  as  well  as  for 
our  imperial  viziers,  our  honored  pachas,  and,  generally, 
all  our  illustrious  servitors,  who  have  the  honor  and 
the  felicity  to  be  in  our  slavery,  that  nothing  shall  ever 
be  permitted  contrary  to  the  present  articles."  ^ 

As  illustrative  of  a  different  style  of  Mohammedan  doc- 
uments, I  give  extracts  from  the  preambles  to  the  treaty 
of  1814,  between  the  Shah  of  Persia  and  Great  Britain, 
and  between  the  Shah  and  France  of  1855.  It  will  be 
noted  that  while  the  compliments  of  the  Turkish  ruler 
are  mainly  moral  and  terrestrial,  those  of  the  Persian 
are  astronomical  and  historical.  That  with  Great  Britain 
begins :  "  Praise  be  to  God,  the  all-perfect  and  all-suf- 
ficient. These  happy  leaves  are  a  nosegay  plucked  from 
the  thornless  garden  of  concord,  and  tied  by  the  hand 
of  the  plenipotentiaries  of  the  two  great  States  in  the 
form  of  a  definite  treaty,  in  which  the  articles  of  friend- 
ship and  amity  are  blended."  In  another  part  of  the 
treaty  a  firman  is  spoken  of  as  being  "  equal  to  a  decree 
of  fate." 

From  that  with  France  of  1855  I  make  the  following 
extract :  "  In  the  name  of  the  clement  and  merciful  God. 
His  High  Majesty,  the  Emperor  Napoleon  [III]  ,  whose 
elevation  is  like  that  of  the  planet  Saturn;  to  whom 
the  sun  serves  as  a  standard;  the  luminous  star  of  the 

Report,  S.  Ex.  Doc.  3,  Special  Session,  1881  ;  for  contents  of  French 
Capitulation  of  1740,  ib.  p.  118. 

^  For  copy  of  Capitulation  of  1740,  Recueil  des  Trait^s  de  la  Porte 
Ottomane,  etc.  (France),  ed.  1864,  p.  186. 


258  THE  PRACTICE  OF  DIPLOMACY 

firmament  of  crowned  heads;  the  sun  of  the  heaven  of 
royalty ;  the  ornament  of  the  diadem ;  the  splendor  of 
standards,  imperial  ensigns;  the  illustrious  and  liberal 
monarch.  And  His  Majesty  [the  Persian  Monarch]  ele- 
vated like  the  planet  Saturn ;  the  sovereign  to  whom 
the  sun  serves  as  a  standard;  whose  splendor  and  mag- 
nificence are  like  those  of  the  heavens ;  the  sublime 
sovereign;  the  monarch  whose  armies  are  as  numerous 
as  the  stars ;  whose  greatness  recalls  that  of  Djemschid ; 
whose  magnificence  equals  that  of  Darius,  heir  of  the 
crown  and  throne  of  the  E^ayamans,  the  sublime  and 
absolute  Emperor  of  all  Persia." 

The  treaty  between  the  United  States  and  Persia, 
made  as  late  as  1856,  has,  in  part,  this  preamble:  "In 
the  name  of  God,  the  clement  and  the  merciful.  The 
President  of  the  United  States  of  North  America  and 
His  Majesty  as  exalted  as  the  planet  Saturn ;  the  Sov- 
ereign to  whom  the  sun  serves  as  a  standard;  whose 
splendor  and  magnificence  are  equal  to  that  of  the  skies ; 
the  Sublime  Sovereign,  the  Monarch,  whose  armies  are 
as  numerous  as  the  stars ;  whose  greatness  calls  to  mind 
that  of  Jemshid ;  whose  magnificence  equals  that  of 
Darius ;  the  heir  of  the  crown  and  throne  of  the  Kaya- 
mans ;  the  Sublime  Emperor  of  all  Persia ;  being  both 
equally  and  sincerely  desirous,"  etc. 

The  religious  invocations  found  in  the  treaties  of  the 
United  States  and  other  Christian  nations  are  a  relic  of 
very  ancient  superstitution  or  pious  fear.  In  the  ear- 
liest Greek  inscriptions  giving  the  text  of  treaties  there 
appears  an  appeal  to  the  Olympian  Zeus.  The  earliest 
extant  treaty  of  mediaeval  Europe  contains  the  invoca- 


NEGOTIATION   AND   FRAMING    OF  TREATIES        259 

tlon,  "  By  the  name  of  God  Almighty,  by  the  Indivisible 
Trinity,  by  all  Divine  things,  and  by  the  dreadful  day 
of  the  last  Judgment."  It  was  the  common  practice  of 
Christian  sovereigns  of  that  period,  in  addition  to  their 
solemn  promise  to  observe  their  treaties,  to  submit  them- 
selves, if  violated,  to  all  the  punishments  of  the  Church, 
"  to  excommunication,  aggravation,  reaggravation,  inter- 
dict, anathematization,  and  other  heavier  censures  and 
fulminations  whatsoever."  The  treaty  of  Paris  of  1856, 
closing  the  Crimean  war,  contains  the  pious  formula, 
"  In  the  name  of  Almighty  God,"  but  not  since  then 
has  it  been  used  in  any  document  of  similar  importance  ; 
and  about  that  date  it  disappeared  from  the  treaties  of 
the  United  States. 

A  treaty  is  said  to  be  concluded  or  celebrated  at  the 
date  of  its  signature,  at  which  time  it  was  formerly  the 
practice  of  the  sovereign  of  the  court  where  it  was  nego- 
tiated to  confer  presents  or  decorations  upon  the  foreign 
negotiators.  Reference  has  been  made  to  the  constitu- 
tional inhibition  in  respect  of  this  matter  applicable  to 
the  envoys  of  the  United  States,  and  the  practice  of 
giving  presents  at  the  conclusion  of  treaties  has  greatly 
fallen  into  disuse  even  with  monarchical  governments. 
The  practice,  however,  after  being  in  great  measure 
abandoned  among  Christian  nations,  was  followed  up 
to  recent  times  in  the  intercourse  with  non-Christian 
countries.  Mr.  Roberts,  the  first  American  envoy  sent 
to  the  East,  was  provided  with  a  quantity  of  presents, 
which  were  bestowed  upon  the  government  officials  of 
the  countries  with  which  he  negotiated  treaties.  Com- 
modore Perry  carried  with  him  to  Japan  a  great  variety 


260  THE   PRACTICE   OF   DIPLOMACY 

of  valuable  and  curious  gifts,  and  the  exchange  of  them 
with  the  presents  given  in  return  by  the  Japanese  was 
attended  with  much  ceremony.^ 

After  the  treaty  with  Persia  of  1866  was  concluded, 
the  preamble  of  which  has  just  been  quoted,  the  Ameri- 
can minister  to  Turkey,  who  signed  it,  wrote  the  secre- 
tary of  state  as  follows :  "  You  are  aware  of  the  fact 
that  the  Ottoman  and  Persian  Governments  always  ex- 
pect to  receive  presents  from  the  Christian  powers  with 
whom  they  negotiate  treaties,  when  the  ratifications  of 
such  treaties  are  exchanged.  The  treaty  made  with 
Turkey  cost  the  United  States  some  fifty  thousand 
dollars.  A  much  less  sum  would,  in  my  opinion,  suffice 
to  satisfy  the  Persian  officials.  I  learn  that  Spain,  upon 
the  exchange  of  ratifications  of  a  treaty  made  by  her 
with  Persia,  gave  presents  to  the  amount  of  twelve  thou- 
sand dollars.  I  do  not  think  that  our  Government  should 
give  less. 

"  I  would  suggest  the  following  present :  a  diamond 
snuff-box  of  the  value  of  four  thousand  dollars,  for  the 
Shah,  and  a  few  good  specimens  of  improved  American 
firearms,  he  being  very  fond  of  hunting ;  to  Mirza  Ag- 
bra  Khan,  the  Grand  Vizier,  a  diamond  snuff-box  to  the 
value  of  three  thousand  dollars;  Farrukh  Khan,  with 
whom  the  treaty  was  negotiated,  another  of  the  same 
value.  To  Mirza  Ahmed  Khan,  the  Persian  charge  at 
Constantinople,  a  diamond  snuff-box  to  the  value  of 
two  thousand  dollars.  To  Melkhom  Khan,  who  was  also 
engaged  in  the  negotiation  of  the  treaty  and  was  instru- 
mental in  forming  it,  a   present  of  the  value  of  one 

'  Foster's  American  Diplomacy  iu  the  Orient,  50,  141,  163. 


NEGOTIATION  AND  FRAMING  OF  TREATIES      261 

thousand  dollars,  besides  backshislies  to  the  different 
attaches  of  the  Persian  legation,  who  all  expect  them. 
A  less  amount  than  fifteen  thousand  dollars  will  not 
suffice." 

It  appears  that  the  amount  appropriated  by  Congress 
for  this  purpose  was  ten  thousand  dollars,  and  that  it 
was  duly  expended  for  presents  at  the  exchange  of  rat- 
ifications.^ Again,  in  1875,  $10,800  were  appropriated 
from  the  national  treasury  for  presents  to  the  Turkish 
officials  upon  the  conclusion  of  the  treaty  of  naturaliza- 
tion of  1874.  The  larger  portion  went  to  the  Turkish 
minister  of  foreign  affairs,  who  signed  the  treaty,  and 
the  other  recipients  were  the  son  of  the  minister,  the 
under-secretary,  the  counselor  and  dragoman  of  the 
ministry,  the  grand  master  of  ceremonies  of  the  court, 
and  eight  or  ten  other  subordinate  officials  and  servants. 
The  expenditure,  however,  proved  a  poor  investment 
for  the  United  States,  for  after  the  treaty  was  ratified 
and  proclaimed,  the  Turkish  government  declined  to  be 
bound  by  it,  because  of  a  misunderstanding  as  to  one 
of  its  stipulations,  the  facts  respecting  which  will  be 
stated  in  the  next  chapter. 

1  Mr.  Spence  to  Secretary  of  State,  December  22, 1856  ;  Mr.  Morris  to 
Secretary  of  State,  February  25,  1862,  MSS.  Department  of  State. 


CHAPTER  XIII 

RATIFICATION  OF  TREATIES 

After  a  treaty  has  been  negotiated  and  duly  signed, 
it  must  be  ratified  by  the  governments  respectively 
which  are  parties  to  it  before  it  can  have  binding  effect. 
The  constitution  or  established  practice  of  each  country 
determines  the  method  of  ratification.  In  the  United 
States  it  is  the  act  of  the  President,  "  by  and  with  the 
advice  and  consent "  of  the  Senate,  by  a  two  thirds  vote 
of  that  body,  as  provided  by  the  Federal  Constitution. 
In  Great  Britain  it  is  said  to  be  the  sole  prerogative  of 
the  sovereign,  but  we  shall  see  that,  before  a  treaty  can 
have  effect  in  the  British  Empire,  in  many  cases  the 
participation  of  the  Parliament  is  necessary.  In  Ger- 
many, France,  and  most  other  constitutional  countries  a 
treaty  requires  the  concurrence  of  the  legislative  bodies 
for  its  ratification ;  but  certain  kinds  of  treaties  are  ex- 
cepted from  this  requirement. 

Upon  the  receipt  by  the  secretary  of  state  of  the 
counterpart  of  the  treaty  belonging  to  our  government, 
the  President  sends  this  original  counterpart  to  the 
Senate  for  its  consideration  and  action,  but  it  is  within 
the  power  of  the  President,  if  he  sees  fit,  to  withhold 
a  negotiated  and  signed  treaty  from  the  Senate.  Prece- 
dents for  this  course  are  found,  among  others,  in  the  ac- 
tion of  President  Jefferson  withholding  from  the  Senate 


RATIFICATION  OF  TREATIES  263 

the  treaty  negotiated  in  London  in  1806  by  Messrs. 
Monroe  and  Pinkney,  and  the  withholding  of  that  of 
Mr.  Hise  with  Nicaragua  in  1849.  So,  also,  the  presi- 
dent has  the  power  to  withdraw  a  treaty  from  the  Senate 
at  any  time  before  it  is  finally  acted  upon  by  that  body, 
even  though  submitted  by  his  predecessor.  Instances 
of  this  kind  are  the  withdrawal  by  President  Cleveland 
in  1885  of  the  conventions  sent  in  by  President  Arthur 
for  a  commercial  reciprocity  with  Spain  and  for  the 
construction  of  a  Nicaraguan  interoceanic  canal,  as  well 
as  the  Hawaiian  annexation  treaty  in  1893,  sent  to  the 
Senate  by  President  Harrison. 

The  framers  of  the  Constitution  of  the  United  States 
followed  the  systems  of  government  of  the  day  in 
making  the  Federal  Executive  the  medium  of  com- 
munication with  foreign  powers,  but  in  one  important 
particular  they  made  a  radical  departure  from  the  exist- 
ing practice  of  nations.  In  joining  the  Senate  with  the 
Executive  in  the  negotiation  and  confirmation  of  treaties, 
they  introduced  a  popular  factor  into  the  relations  of 
the  new  nation  with  the  powers  of  the  world,  destined 
to  work  an  important  change  in  international  affairs. 
And  in  requiring  that  all  treaties  should  secure  the  vote 
of  two  thirds  of  the  Senate,  the  framers  of  the  Constitu- 
tion emphasized  their  conviction  that  the  Executive 
should  enter  into  no  stipulations  with  a  foreign  power 
which  did  not  command  the  support  of  a  large  majority 
of  the  people  of  the  United  States. 

It  is  an  interesting  fact  that  when  the  occasion 
arose  for  the  first  time  to  put  in  operation  the  clause  of 
the  Constitution  that  the  President  "  shall  have  power, 


264  THE  PRACTICE  OF  DIPLOMACY 

by  and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,"  Washington,  who  had  been  the  Presi- 
dent of  the  Constitutional  Convention,  sent  a  message 
to  the  Senate  informing  that  body  that  on  the  next  day 
at  an  hour  named  he  would  go  in  person  to  the  Senate 
Chamber  "  to  advise  with  them  [the  Senate]  on  the  terms 
of  the  treaty  to  be  negotiated."  ^ 

Previous  to  this  notification  the  Senate  had  appointed 
a  committee  "  to  confer  with  him  on  the  mode  of  com- 
munication between  the  President  and  the  Senate  re- 
specting treaties  and  nominations."^  It  seemed  to  be 
taken  for  granted  that  the  Constitution  contemplated 
oral  communication  or  personal  conference  between  them 
as  to  treaties  when  their  ratification  was  under  con- 
sideration. In  reply  to  the  inquiry  of  the  committee,  the 
President  wrote :  "  In  all  matters  respecting  treaties, 
oral  communications  seem  indispensably  necessary, 
because  in  these  a  variety  of  matters  are  contained,  all 
of  which  not  only  require  consideration,  but  some  may 
undergo  much  discussion,  to  do  which  by  written  com- 
munications would  be  tedious  without  being  satisfac- 
tory."^ 

It  was  also  considered    proper   that  the   President 

*  1  Annals  of  Congress,  67.   The  message  is  as  follows  :  — 

New  York,  August  24, 1789. 
Gentlemen  of  the  Senate  :   The  President  of  the  United  States  will 
meet  the  Senate  in  the  Senate  Chamber  at  half  past  eleven  o'clock  to-mor- 
row to  advise  with  them  on  the  terms  of  the  treaty  to  be  negotiated  with 

the  Southern  Indians. 

Go.  Washington. 
1  Messages  of  the  Presidents,  61. 

^  11  Washington's  Writings,  417  ;  1  Annals  of  Congress,  66. 
'  11  Washington's  Writings,  417. 


RATIFICATION   OF   TREATIES  265 

should  call  the  Senate  to  meet  him  at  his  residence  for 
the  consideration  of  treaties,  but  that,  until  the  govern- 
ment should  provide  a  public  building  for  the  President, 
it  would  be  more  convenient  for  him  to  go  to  the 
Senate/  Although  in  the  entire  existence  of  the  gov- 
ernment there  has  occurred  only  this  one  participation  of 
the  President  in  the  executive  sessions  of  the  Senate, 
there  is  still  found  in  the  Standing  Rules  of  the  Senate 
a  provision  which  contemplates  such  visits,  and  also  that 
the  President  shall  convene  the  Senate  at  such  place  as 
he  may  appoint.^ 

In  accordance  with  the  notification  above  cited  Pre- 
sident Washington  went  to  the  Senate  to  consider  the 
treaty  which  was  to  be  negotiated,  accompanied  by  the 
secretary  having  it  in  charge,  and  the  subject  was  con- 
sidered jointly  for  two  days;  but  this  method  was  found 
to  be  subject  to  serious  objections  and  quite  unsatisfac- 
tory, and  it  was  abandoned  after  this  one  experience. 
A  senator,  who  was  present  and  took  part  in  the  session, 
has  recorded  that  it  was  found  after  the  President  had 
presented  the  subject  that  the  Senate  was  not  prepared 
to  act  upon  it  without  further  consideration  and  an  ad- 
journment was  taken  until  another  day.  He  adds  that 
the  President  withdrew  with  a  "  discontented  air,"  and 
says  :  "  Had  it  been  any  other  than  the  man  who  I  wish 

1  11  Washington's  "Writings,  417-419. 

2  The  following  is  the  Rule  (Rule  XXXVI)  :  «  When  the  President  of 
the  United  States  shall  meet  the  Senate  in  the  Senate  Chamber  for  the 
consideration  of  Executive  business,  he  shall  have  a  seat  on  the  right  of 
the  Presiding  Officer.  When  the  Senate  shall  be  convened  by  the  Presi- 
dent of  the  United  States  at  any  other  place,  the  Presiding  Officer  of 
the  Senate  and  the  Senators  shall  attend  at  the  place  appointed,  with  the 
necessary  officers  of  the  Senate." 


266  THE   PRACTICE  OF  DIPLOMACY 

to  regard  as  the  first  character  in  the  world,  I  would 
have  said,  with  sullen  dignity."  ^  The  report  of  the  Presi- 
dent's displeasure  at  his  conference  with  the-  Senate  was 
confirmed  years  afterwards  by  President  Monroe.^  The 
practice  which  has  ever  since  that  event  been  followed  is 
for  the  President  to  transmit  to  the  Senate  the  treaty, 
accompanied  by  a  message  containing  such  statement  as 
may  be  considered  proper  respecting  the  negotiations  and 
such  documents  as  would  be  useful  to  the  Senate  in  its 
deliberations,  and  to  answer  the  calls  of  the  Senate  or  its 
committee  on  foreign  relations  for  further  information. 
The  first  treaty  that  was  ratified  under  the  Constitu- 
tion was  one  which  had  been  negotiated  during  the 
Confederation  while  John  Jay  was  secretary  of  foreign 
affairs,  who  continued  to  act  in  that  capacity  for  some 
months  after  the  new  government  was  organized. 
When  the  treaty  came  to  be  considered  by  the  Senate 
it  was  ordered  "  that  the  Secretary  of  Foreign  Affairs 
attend  the  Senate  to-morrow,  and  bring  with  him  such 

^  Maclay's  Journal:  Sketches  and  Debates  in  the  First  Senate  of  the 
United  States  (1890),  128  ff. 

"^  President  Washington's  visit  to  the  Senate  on  this  occasion  was  recalled 
at  a  cabinet  meeting  during  the  administration  of  Monroe  as  narrated  in 
his  diary  by  John  Quiucy  Adams,  then  secretary  of  state,  as  follows:  — 

"  Mr.  Crawford  told  twice  over  the  story  of  President  Washington's  hav- 
ing at  an  early  period  of  his  administration  gone  to  the  Senate  with  a 
project  of  a  treaty  to  be  negotiated,  and  been  present  at  their  deliberations 
upon  it.  They  debated  it  and  proposed  alterations  so  that  when  Washing- 
ton left  the  Senate  Chamber  he  said  he  would  be  d d  if  he  ever  went 

there  again.  And  ever  since  that  time  treaties  have  been  negotiated  by 
the  Executive  before  submitting  them  to  the  consideration  of  the  Senate. 

"  The  President  said  he  had  come  into  the  Senate  about  18  months  after 
the  first  organization  of  the  present  government,  and  then  heard  that 
something  like  this  had  occurred."  —  6  Memoirs  of  J.  Q.  Adams,  427. 


RATIFICATION  OF   TREATIES  267 

papers  as  are  requisite  to  give  full  information  relative 
to  the  consular  convention  between  France  and  the 
United  States."  On  the  next  day  the  following  entry 
was  made  in  the  journal :  — 

"  The  Senate  was  to-day  mostly  engaged  in  Executive 
business.  The  Secretary  of  Foreign  Affairs  attended, 
agreeable  to  order,  and  made  the  necessary  explana- 
tions." ^  In  this  action  the  secretary  was  following  a 
practice  observed  in  the  Continental  Congress,  but  the 
new  secretary  of  state,  Mr.  Jefferson,  profiting  by  the 
President's  experience,  discontinued  it. 

Although  the  President  and  secretary  of  state  ceased 
to  go  in  person  to  the  Senate  to  deliberate  with  it  upon 
treaties,  this  body  has  been  recognized  in  a  variety  of 
ways  by  them  as  a  coordinate  part  of  the  treaty-making 
power,  both  before  negotiations  have  been  entered 
upon  and  during  their  progress,  as  well  as  at  their  close, 
and  this  continuously  throughout  the  entire  existence 
of  the  government. 

The  instances  were  frequent  during  the  administra- 
tion of  President  Washington.  Among  the  cases  where 
the  advice  of  the  Senate  was  asked  before  negotiations 
were  entered  upon,  a  number  may  be  cited  between 
1790  and  1792,  respecting  proposed  treaties  with  Indian 
tribes,  and  in  all  such  instances  the  Senate  took  action.^ 
Several  instances  of  the  same  kind  occurred  during:  this 
period  respecting  treaties  with  foreign  governments. 
When  a  question  arose  with  Great  Britain  regarding  the 
northeastern  boundary  in  1790,  negotiations  were  sus- 

1  1  Annals  of  Congress,  52. 

2  1  Presidents'  Messages,  76,  79,  116,  122. 


268  THE   PRACTICE   OF   DIPLOMACY 

pended  until  the  President  could  secure  the  advice  of 
the  Senate  as  to  the  propositions  which  should  be  sub- 
mitted by  the  government.^  On  May  8,  1792,  the  Pre- 
sident submitted  to  the  Senate  the  question  whether,  if 
he  should  conclude  a  treaty  with  Algiers  on  the  terms 
stated,  the  Senate  would  approve  it.^  The  Senate 
agreed  to  approve  the  treaty  on  the  terms  specified  by 
it.^  Before  sending  in  his  message  the  President  had 
been  advised  by  Secretary  Jefferson  that  since  the  sub- 
sequent approbation  of  the  Senate  was  necessary  to 
validate  a  treaty,  it  should,  if  the  case  admitted,  be 
consulted  before  opening  negotiations.* 

While,  as  will  be  seen,  in  various  other  ways  the 
Presidents  continued  to  consult  the  Senate  as  to  treaty 
negotiations,  the  above  practice  of  asking  in  advance  its 
advice  respecting  the  terms  of  treaties  to  be  proposed 
was  not  resorted  to  for  a  considerable  period.  But  there 
is  a  notable  instance  of  the  return  to  the  practice  during 
the  administration  of  President  Polk,  when,  in  his  mes- 
sage of  June  10, 1846,  he  sent  to  the  Senate  a  draft  of 
a  proposed  convention  with  Great  Britain  for  the  settle- 
ment of  the  Oregon  boundary.    In  the  message^  he  said : 

"  In  the  early  periods  of  the  Government  the  opinion 
and  advice  of  the  Senate  were  often  taken  in  advance 
upon  important  questions  of  our  foreign  policy.  General 
Washington  repeatedly  consulted  the  Senate  and  asked 

1  1  Annals  of  Congress,  980. 

2  1  Presidents'  Messages,  123. 

*  1  Executive  Journal,  36,  37. 

*  21  MSS.  Washington  Papers,  91 ;  Jefferson  Papers,  series  4,  vol.  2, 
No.  18. 

*  4  Presidents'  Messages,  449,  452. 


RATIFICATION  OF  TREATIES  269 

their  previous  advice  upon  pending  negotiations  with 
foreign  powers,  and  the  Senate  in  every  instance  re- 
sponded to  his  call  by  giving  their  advice,  to  which  he 
always  conformed  his  action.  This  practice,  though 
rarely  resorted  to  in  later  times,  was,  in  my  judgment, 
eminently  wise,  and  may  on  occasions  of  great  im- 
portance be  properly  revived.  .  .  .  Should  the  Senate, 
by  the  constitutional  majority  required  for  the  rati- 
fication of  treaties,  advise  the  acceptance  of  this  propo- 
sition, or  advise  it  with  such  modifications  as  they  may 
upon  full  deliberation  deem  proper,  I  shall  conform  my 
action  to  their  advice." 

The  same  President  informed  the  Senate,  August  4, 
1846,  that,  in  view  of  "  the  glorious  events  which  have 
already  signalized  our  arms,"  he  had  determined  "  to 
extend  the  olive  branch  to  Mexico."  He  then  laid  before 
the  Senate  the  basis  of  the  proposed  negotiations  for 
peace,  and  asked  the  Senate,  if  in  executive  session  it 
concurred  in  his  views,  to  initiate  an  appropriation  to 
carry  out  the  negotiations.* 

President  Buchanan,  February  21,  1861,  submitted 
an  inquiry  to  the  Senate  as  to  whether  or  not  it  would 
approve  a  treaty  respecting  a  boundary  question  which 
had  arisen  with  Great  Britain,  and  named  three  points 
to  be  covered  by  the  proposed  treaty."  The  Senate  re- 
ferred the  matter,  March  16,  to  President  Lincoln,  who 
renewed  the  request  of  his  predecessor  and  said  he 
would  "  receive  the  advice  of  the  Senate  thereon  cheer- 
fully." ^  A  few  months  later  he  sent  to  the  Senate 
a  draft  of  a  treaty  to  be  proposed  to  Mexico,  and  asked 

1  4  Presidents'  Messages,  456.  «  lb.  666.  '  5  lb.  12. 


270  THE  PRACTICE  OF  DIPLOMACY 

its  advice  thereon.  The  Senate  not  acting  promptly, 
President  Lincoln,  in  view  of  the  importance  of  the 
question,  again  solicited  its  advice.  The  Senate  then 
passed  a  resolution  that  the  treaty  was  not  advisable, 
but  before  that  decision  was  communicated  to  the 
American  minister  in  Mexico,  he  had  signed  two 
treaties  on  the  subject.  Thereupon  the  President  sent 
the  treaties  to  the  Senate,  but,  referring  to  its  previous 
action,  said,  "  the  action  of  the  Senate  is  of  course 
conclusive  against  an  acceptance  of  the  treaties  on  my 
part."  ' 

Other  instances  of  a  similar  character  are  the  action 
of  President  Johnson  in  1868,  in  consulting  the  Senate 
as  to  the  expediency  of  negotiating  an  extradition  treaty 
with  Great  Britain ;  of  President  Grant,  in  1872,  in 
submitting  a  proposed  article  to  overcome  the  obstacle 
which  had  arisen  to  the  progress  of  the  Geneva  arbi- 
tration tribunal,  and  in  1874  of  a  draft  of  a  proposed 
treaty  for  Canadian  reciprocity.  In  his  message  as  to 
the  Geneva  tribunal  President  Grant  said,  "  the  Senate 
is  aware  that  the  consultation  with  that  body  in  advance 
of  entering  upon  agreements  with  foreign  states  has 
many  precedents,"  President  Arthur,  in  1884,  sent  to 
the  Senate  a  proposal  from  the  King  of  Hawaii  for  the 
extension  of  the  reciprocity  treaty,  and  said,  "  I  deem  it 
fitting  to  consult  the  Senate  in  the  matter  before  direct- 
ing the  negotiations  to  proceed."  ^  Other  later  cases 
might  be  cited. 

»  6  Presidents'  Messages,  60,  63,  81. 

2  lb.  696  ;  7  ib.  166,  266  ;  8  ib.  218.   Compilation  of  Reports  of  Senate 
Com.  on  For.  Rel.,  S.  Doc.  231,  56th  Cong.,  2d  Sess.  pt.  8,  22. 


RATIFICATION   OF  TREATIES  271 

Presidents  have  often  resorted  to  another  method  of 
consulting  the  Senate  in  advance  of  opening  negotia- 
tions with  foreign  powers,  to  wit :  in  sending  to  that 
body  the  nomination  of  special  envoys,  stating  the  pur- 
pose of  their  nomination,  and  giving  in  some  cases  the 
basis  of  the  proposed  negotiations.  The  confirmation 
of  the  nominations  under  such  circumstances  has  been 
understood  to  be  an  approval  of  the  proposed  nego- 
tiations. 

In  1792  President  Washington  sent  to  the  Senate 
a  report  from  the  secretary  of  state  to  the  effect  that  the 
Spanish  government  had  indicated  a  disposition  to  open 
negotiations  for  the  adjustment  of  the  difficulties  re- 
specting the  navigation  of  the  Mississippi  River,  stating 
his  views  as  to  what  it  was  desired  to  accomplish,  and 
recommending  that  special  plenipotentiaries  be  appointed 
to  open  negotiations  at  Madrid ;  and  this  was  accom- 
panied by  the  nomination  of  two  plenipotentiaries  for 
that  purpose.  After  confirmation  and  the  arrival  of 
the  plenipotentiaries  at  Madrid  it  was  ascertained  that 
the  Spanish  government  desired  to  extend  the  negotia- 
tions to  commercial  matters,  and,  upon  the  advice  of 
Secretary  Jefferson  that  a  resubmission  of  the  matter  to 
the  Senate  was  necessary,  the  President  sent  a  further 
message  communicating  the  basis  of  a  commercial  treaty 
as  proposed,  and  asked  the  Senate  to  consent  to  the 
extension  of  the  powers  of  the  American  commissioners, 
which  was  done.^ 

A  similar  course  was  adopted  when  Mr.  Jay  was 

1  1  Presidents'  Messages,  114  ;  5  Jefferson's  Writings,  442  ;  1  Ameri- 
can State  Papers,  133. 


272  THE  PRACTICE  OF  DIPLOMACY 

nominated  as  special  envoy  to  Great  Britain  in  1794  to 
adjust  the  acute  difficulties  with  that  country/  In  1797 
three  commissioners  were  nominated  to  open  nego- 
tiations with  France  to  save  the  two  countries  from 
a  threatened  war,  and  the  objects  to  be  attained  were  set 
forth  in  the  message.  Two  years  later  a  nomination  of 
a  minister  to  France  was  submitted  to  the  Senate,  with 
a  statement  of  the  conditions  under  which  he  was  to 
enter  on  his  mission.  The  Senate  hesitated  to  confirm 
the  nomination,  and  the  President  substituted  the  nom- 
ination of  three  commissioners,  the  purpose  of  their 
mission  was  set  forth,  and  the  conditions  under  which 
they  would  take  their  departure.^ 

The  Russian  government  having  indicated  in  1797 
a  desire  to  negotiate  a  commercial  treaty.  President 
Adams  informed  the  Senate  of  the  fact,  and  asked  it  to 
confirm  the  nomination  of  Mr.  King,  minister  in  Lon- 
don, as  a  special  envoy  for  that  purpose.  When  Messrs. 
Livingston  and  Monroe  were  nominated  as  special  pleni- 
potentiaries to  negotiate  for  the  acquisition  of  the  island 
of  New  Orleans,  in  1803,  President  Jefferson  advised 
the  Senate  of  the  purposes  of  the  mission.^  A  case  of 
special  interest  was  that  set  forth  in  President  Van 
Buren's  message  to  the  Senate,  in  1838,  which  illus- 
trates the  care  with  which  the  prerogatives  of  that 
body  were  respected  by  the  Executive.  It  was  informed 
that  the  republic  of  Ecuador  had  signified  its  desire  to 
enter  into  a  treaty  of  commerce,  that  the  newly 
appointed  minister  to  Peru,  about  to  repair  to  his  post, 

*  1  Presidents'  Messages,  153. 

»  lb.  245,  282,  284.  «  lb.  282,  350. 


RATIFICATION  OF  TREATIES  273 

could  stop  en  route  and  attend  to  these  negotiations, 
and  that  the  expenses  incurred  could  be  paid  out  of  the 
foreign-intercourse  fund.  He  adds :  "  Desiring  in  this 
and  in  all  instances  to  act  with  the  most  cautious 
respect  to  the  claims  of  other  branches  of  the  govern- 
ment, I  bring  this  subject  to  the  notice  of  the  Senate 
that  if  it  shall  be  deemed  proper  to  raise  any  question 
it  may  be  discussed  and  decided  before  and  not  after 
the  power  shall  be  exercised."  ^ 

In  addition  to  submitting  to  the  Senate  the  advisabil- 
ity of  opening  negotiations,  the  President  has  sought  its 
advice  on  doubtful  questions  of  treaty  interpretation  or 
action.  In  1791  the  French  government  claimed  that 
certain  acts  of  Congress  were  in  contravention  of  the 
existing  treaty  between  the  two  countries.  President 
Washington  submitted  the  matter  to  the  Senate,  with  a 
full  report  from  Secretary  Jefferson  and  the  correspond- 
ence, and  solicited  its  opinion,  as  he  said,  "  that  I  may 
be  enabled  to  give  it  [France]  such  answer  as  may 
best  comport  with  the  justice  and  interests  of  the 
United  States."  The  Senate,  after  due  consideration, 
gave  its  advice  that  the  position  of  the  government  of 
the  United  States  was  correct  and  should  be  main- 
tained.^ In  1817  the  secretary  of  state  and  the  British 
minister  entered  into  an  arrangement,  by  an  exchange  of 
notes,  for  disarmament  on  the  Great  Lakes.  One  year 
afterwards  President  Monroe  sent  the  correspondence  to 
the  Senate  and  asked  whether  this  was  a  matter  which 
the  Executive  was  competent  to  settle  alone,  and,  if  not, 

'  3  Presidents'  Messages,  477. 

2  1  lb.  89;  1  Anuals  of  Congress,  1771. 


274  THE  PRACTICE  OF  DIPLOMACY 

then  he  asked  for  its  advice  and  consent  to  making  the 
agreement.  The  Senate  took  cognizance  of  it,  and 
advised  its  ratification,  which  was  observed  with  the 
formaUties  of  a  treaty.^ 

The  question  of  the  northeastern  boundary  having 
been  submitted  to  the  arbitration  of  the  King  of  the 
Netherlands,  and  his  award  being  rendered,  the  Presi- 
dent transmitted  a  copy  of  the  award  to  the  Senate  and 
asked  "  whether  you  will  advise  submission  to  the  opin- 
ion .  .  .  and  consent  to  its  execution."  The  Senate 
advised  against  its  acceptance.^  Similar  action  was 
taken  by  President  Buchanan,  in  1861,  respecting  the 
Paraguayan  award  and  was  repeated  by  his  successor  in 
1862.^  Upon  receipt  of  a  dispatch  from  the  minister  in 
Hawaii  urging  measures  to  bring  about  its  annexation 
to  the  United  States,  President  Grant,  in  1871,  com- 
municated the  dispatch  to  the  Senate,  stating  that  any 
recommendation  it  should  see  fit  to  make  would  be  very 
acceptable.* 

The  President  has  also  suggested  to  the  Senate  in 
a  number  of  instances  that  the  treaties  negotiated  by  his 
representatives  and  sent  to  it  for  approval,  be  amended 
by  that  body  in  particulars  indicated  by  him.  In  one 
case  where  he  recommended  that  an  article  be  stricken 
out,  the  Senate  approved  the  treaty  without  making  the 
amendment,  and  thereupon  the  President  declined  to 
ratify  the  same.  In  sending  the  Clayton-Bulwer  treaty 
to  the  Senate,  President  Taylor  referred  to  the  Nica- 

^  2  Presidents'  Messages,  36. 

*  lb.  559  ;  Moore's  International  Arbitrations,  138. 

'  6  Presidents'  Messages,  G7.  *  7  lb.  131. 


RATIFICATION  OF  TREATIES  275 

ragua  treaty  then  pending  in  that  body,  and  asked  if 
both  were  to  be  approved  that  the  Senate  amend  them 
both  in  the  particulars  in  which  they  were  in  conflict.* 

In  rare  instances  the  Senate  has  initiated  treaties  by 
requesting  the  President  to  open  negotiations  with  for- 
eign governments  on  specially  indicated  subjects.^  More 
frequently  such  action  has  been  by  joint  resolution  of 
the  two  houses  of  Congress.^  Such  action,  however,  is 
usually  discouraged.  The  Senate  committee  on  foreign 
relations,  reporting  adversely  on  a  resolution  of  this 
character,  in  1816,  said:  "The  President  is  the  consti- 
tutional representative  of  the  United  States  with  regard 
to  foreign  nations.  He  manages  our  concerns  with  for- 
eign nations  and  must  necessarily  be  most  competent 
to  determine  when,  how,  and  upon  what  subjects  nego- 
tiations may  be  urged  with  the  greatest  prospect  of 
success.  .  .  .  The  nature  of  transactions  with  foreign 
nations,  moreover,  requires  caution  and  unity  of  design, 
and  their  success  frequently  depends  on  secrecy  and 
dispatch.  A  division  of  opinions  between  members  of 
the  Senate  in  debate  on  propositions  to  advise  the  Exec- 
utive, or  between  the  Senate  and  Executive,  could  not 
fail  to  give  the  nation  with  whom  we  might  be  disposed 
to  treat  the  most  decided  advantage."  * 

1  3  Presidents'  Messages,  259 ;  4  ib.  600 ;  5  ib.  42,  154,  229 ;  6  ib. 
152. 

2  3  Ib.  272  ;  8  ib.  609. 

3  22  U.  S.  Statutes  at  Large,  1053  ;  Public  Statutes,  1901-02,  481  ; 
1  Moore's  International  Arbitrations,  962. 

*  Compilation  of  Reports  of  Senate,  etc.,  vol.  8,  22.  For  review  of 
treaty-making  power,  see  article  by  Senator  H.  C.  Lodge  in  Scribner's 
Magazine,  January,  1902  ;  also  Treaties,  their  Making  and  Enforcement, 
by  S.  C.  Crandall  (1904). 


276  THE   PRACTICE   OF   DIPLOMACY 

The  question  to  what  extent,  if  any,  the  Senate  can 
interpose  during  the  negotiation  of  a  treaty  by  the  Exec- 
utive, has  been  recently  the  subject  of  animated  debate 
in  that  body.  On  the  one  hand  it  is  contended  that  the 
President  has  the  exclusive  right  to  conduct  a  negotia- 
tion up  to  the  point  of  the  signature  of  the  treaty  and 
submitting  it  to  the  Senate,  when  the  duty  of  that  body 
respecting  it  begins.  On  the  other  hand,  it  is  main- 
tained that  it  is  proper  for  the  Senate,  at  any  time  dur- 
ing the  negotiation  and  before  the  treaty  is  signed,  to 
communicate  its  views  to  the  President  regarding  the 
negotiation.^ 

The  Senate  has  exercised  its  constitutional  power  of 
amending  treaties  after  they  have  been  signed  and  sub- 
mitted to  it  for  approval  in  a  large  number  of  cases. 
In  most  instances  this  action  has  been  accepted  by  the 
Executive  and  by  the  interested  foreign  powers.  Since 
the  organization  of  the  government  more  than  seventy 
of  such  amended  treaties  have  gone  into  operation.  Al- 
though the  Senate  has  so  often  exercised  its  prerogative 
in  amending  treaties,  the  official  records  show  that  those 
negotiated  by  the  Executive  and  ratified  without  change 
by  the  Senate  are  far  in  excess  of  those  amended  or 
rejected. 

While  the  negotiation  of  treaties  is  conducted  by  or 
under  the  direction  of  the  secretary  of  state,  such  nego- 
tiation cannot  properly  be  said  to  be  concluded  until  the 
"  advice  of  the  Senate  "  is  obtained,  which,  as  noted,  is 
sometimes  secured  in  advance,  but  usually  not  until  the 

'  See  speeches  of  Senators  Spooner  and  Bacon,  Congressional  Record, 
vol.  40,  No.  47,  February  12,  1906. 


RATIFICATION  OF  TREATIES  277 

treaty  is  submitted  to  the  Senate  for  ratification.  That 
body  being  made  by  the  Constitution  a  part  of  the 
treaty-making  power,  the  amendments  which  it  may  see 
proper  to  submit  for  the  consideration  of  the  foreign 
government  which  is  a  party  to  the  proposed  treaty  are 
as  much  a  stage  of  the  negotiations  as  the  preceding 
action  of  the  secretary  of  state. 

The  Senate  has  not  infrequently  exercised  its  consti- 
tutional right  in  the  rejection  of  treaties,  some  of  them 
of  the  highest  importance,  as  that  for  the  annexation  of 
Texas  and  San  Domingo,  the  fisheries  convention  with 
Great  Britain,  and  the  arbitration  treaty  of  1897.  Other 
conventions  have  remained  unacted  upon  for  years  and 
been  finally  ratified,  and  still  others  have  been  allowed 
to  expire  in  the  committee  or  in  the  Senate. 

The  action  of  the  body  is  often  delayed  beyond  the 
time  fixed  for  exchange  of  ratifications,  and  in  many  in- 
stances protocols  or  conventions  have  been  agreed  upon 
extending  the  time,  but  these  protocols  are  always  sub- 
mitted to  the  Senate  for  approval.  This  delay  is  not 
considered  a  good  ground  for  complaint,  as  the  Senate 
being  a  coordinate  branch  of  the  treaty-making  power 
has  the  right  to  take  such  time  as  it  may  think  necessary 
for  deliberation  and  action.  When,  however,  the  Spanish 
government  delayed  the  ratification  of  the  convention 
for  the  cession  of  Florida  for  two  years,  Secretary  J.  Q. 
Adams  protested  in  most  vigorous  language. 

It  is  also  held  by  our  government  that  the  failure  of 
the  Senate  to  ratify  is  no  cause  for  complaint,  even 
when  the  treaty  has  already  been  ratified  by  the  other 
party.    It  is  true  that  an  American  plenipotentiary  is 


278  THE   PRACTICE   OF  DIPLOMACY 

clothed  by  the  President  with  "  full  powers  "  to  nego- 
tiate and  sign  the  treaty,  and  the  former  promises  to 
ratify  his  action,  but  these  are  always  understood  to  be 
qualified  by  the  constitutional  provision  as  to  ratifica- 
tion, and  the  treaties  generally  contain  a  clause  that 
they  shall  be  ratified  "  by  and  with  the  advice  and  con- 
sent of  the  Senate."  This  matter  was  discussed  early  in 
Washington's  administration.  When  in  1792  the  in- 
structions to  the  American  commissioners  to  Spain  were 
being  considered  in  the  cabinet,  Mr.  Hamilton  main- 
tained that  the  proposed  treaty  should  contain  a  reserva- 
tion as  to  ratification,  so  as  to  indicate  the  participation 
of  the  Senate.  Secretary  Jefferson  considered  that  it 
was  sufficient  to  stipulate  that  it  would  be  ratified,  with- 
out stating  by  what  agency.^  The  treaty  of  1795  with 
Spain,  accordingly,  contained  the  provision  that  it 
should  be  "  ratified  by  the  contracting  parties."  But 
the  Jay  treaty  of  1794  with  Great  Britain  had  the 
phrase  "by  and  with  the  advice  and  consent  of  the 
Senate ; "  and,  as  stated,  the  latter  has  been  the  course 
usually  followed. 

Vattel  expresses  the  generally  accepted  view  that  a  re- 
fusal to  ratify  should  be  based  upon  "  strong  and  valid 
reasons."  The  obligation  to  ratify  is  stronger  in  the 
case  of  sovereigns  who  both  give  the  "  full  powers  "  and 
possess  the  prerogative  in  their  own  persons  of  ratifica- 
tion ;  but  even  these  have  freely  exercised  the  right  of 
rejection.  For  instance,  the  King  of  Holland  refused 
to  ratify  a  treaty  in  1841  because  after  it  was  signed  he 

'  5  Jefferson's  Writings,  445  ;  Treaties  and  Conventions  of  the  United 
States,  Spain. 


RATIFICATION  OF  TREATIES  279 

had  become  convinced  that  it  would  injure  the  trade  of 
his  subjects;  and  the  British  government  decHned  to 
ratify  a  treaty  with  Portugal  in  1883,  alleging  that  its 
provisions  were  very  far  from  satisfying  the  traders  and 
others  immediately  concerned.  One  of  the  strongest 
reasons  for  the  formality  of  ratification  is  thus  apparent, 
that  a  state  may  not  be  exposed  to  serious  injury  from 
the  inadvertence  or  mistakes  of  the  negotiator  or  by  a 
change  of  conditions. 

After  a  treaty  has  been  approved  by  the  Senate  the 
President  has  the  power  of  declining  to  ratify,  and  has 
exercised  that  power  by  allowing  the  treaty  to  fail  by 
non-action.  This  usually  occurs  because  of  amendments 
made.  In  one  instance,  at  least,  the  President  sent  the 
Senate  a  message  giving  the  reasons  for  his  action.^ 

Treaties  are  considered  in  executive  session,  but  in 
one  case  (the  fisheries  treaty  of  1888)  it  was  debated 
and  acted  upon  in  open  Senate.  Often  the  treaties  are 
made  public  before  action  by  the  Senate,  even  though 
considered  in  executive  session,  and  sometimes  after 
action  the  injunction  of  secrecy  is  removed  as  to  the 
discussion.  Under  this  practice  Senator  Sumner's  cele- 
brated speeches  on  the  cession  of  Alaska  in  1867  and  the 
National  Claims  against  Great  Britain  in  1869  were 
published. 

Instances  have  occurred  where  the  Senate,  after  acting 
upon  treaties  and  transmitting  them  to  the  President,  has 
by  resolution  requested  their  return,  and  has  taken  the 
same  into  consideration  and  reversed  its  previous  action.^ 

*  4  Presidents*  Messages,  600. 

'  Senate  Executive  Journal,  vol.  9,  312 ;  ib.  vol.  10,  144;  ib.  vol.  12, 


280  THE  PRACTICE  OF  DIPLOMACY 

After  the  Senate  has  approved  a  treaty,  its  action  is 
communicated  to  the  President,  whereupon  an  instru- 
ment of  ratification  is  prefixed  to  the  treaty,  signed  by 
the  President,  attested  by  the  secretary  of  state,  and  the 
Great  Seal  is  attached.  The  next  step  is  the  exchange  of 
ratifications,  which  is  done  by  plenipotentiaries,  nomi- 
nated with  "  full  powers,"  but  not  necessarily  those  who 
negotiated  the  compact. 

The  time  within  which  this  act  is  to  be  done  is  usually 
fixed  in  the  last  paragraph  of  the  treaty.  The  custom  of 
fixing  a  time  within  which  ratifications  are  to  be  ex- 
changed grows  out  of  the  fact  that  it  is  the  duty  of  the 
contracting  governments  to  preserve  as  far  as  possible 
the  status  quo  in  respect  to  the  matters  which  are  the 
subject  of  the  treaty.  As  will  be  seen  later,  it  is  some- 
times the  practice  for  the  governments  to  enter  into 
a  temporary  arrangement,  termed  a  modus  Vivendi,  for 
this  purpose,  pending  the  negotiation  and  ratification  of 
a  treaty. 

The  formality  of  exchange  of  ratifications  is  for  the 
American  plenipotentiary  to  hand  a  copy  of  the  treaty 
previously  prepared,  which  has  the  signatures  of  the 
President  and  secretary  of  state  and  the  Great  Seal  at- 
testing its  ratification,  to  the  plenipotentiary  of  the  other 
contracting  state,  and  receiving  from  him  a  like  copy 
which  has  the  signature  of  the  head  of  his  state ;  so  that 
each  government  has  in  its  archives  its  own  counterpart 
with  its  own  ratification,  and  a  copy  of  the  treaty  with 
the  ratification  of  the  head  of  the  other  government. 

423,  461;  ib.  vol.  27,  470;  ib.  voL  11,  165,  218;  ib.vol.  11,  222,  254,  276; 
ib.  vol.  19,  281,  291  ;  ib.  vol.  11, 147,  153  ;  ib.  vol.  24,  287,  455. 


RATIFICATION  OF  TREATIES  281 

A  protocol  setting  forth  the  act  of  exchange  of  ratifica- 
tions is  drawn  up  and  signed  by  the  plenipotentiaries. 

The  place  for  exchange  of  ratification  of  treaties  is 
stipulated  in  the  concluding  paragraph,  and  is  usually 
the  capital  of  one  of  the  contracting  governments.  It 
was  agreed  in  the  Russo-Japanese  peace  treaty  of  1905 
that  the  exchange  should  take  place  in  Washington,  the 
treaty  having  been  signed  in  this  country,  and  diplo- 
matic representatives  having  been  withdrawn  from  the 
respective  capitals  of  the  belligerents  at  the  opening  of 
hostilities. 

Even  after  ratification  a  treaty  may  fail  because  of 
refusal  to  exchange  ratifications.  At  least  two  instances 
of  this  class  have  occurred  in  the  history  of  the  United 
States.  The  archives  of  the  government  contain  about 
eighty  treaties  which,  after  being  signed,  have  failed  to 
go  into  effect  for  various  reasons. 

In  addition  to  the  foregoing  method  of  entering  upon 
treaties,  nations  may  become  parties  thereto  by  what  is 
termed  adhesion  or  accession.  Thus,  where  several 
nations  have  united  in  treaty  stipulations  which  may 
have  a  general  application  to  other  countries  as  well  as 
to  the  nations  which  originally  join  in  them,  the  other 
countries  may  become  parties  thereto  by  a  formal  act  to 
that  effect,  in  the  manner  set  forth  in  the  convention. 
For  instance,  the  Great  Powers  of  Europe,  in  the  con- 
ference held  after  the  Crimean  War,  adopted  what  are 
known  as  the  Four  Rules  of  Paris,  governing  their 
future  action  as  between  each  other  in  time  of  war;  and 
they  provided  that  all  the  other  commercial  nations 
should  be  invited  to  accept  them,  and  this  has  been 


282  THE  PRACTICE  OF  DIPLOMACY 

done  by  most  of  the  maritime  countries  of  the  world. 
The  United  States  has  not  given  its  formal  adhesion  to 
these  Rules,  although  it  observes  them;  but  it  has 
acceded  to  the  Geneva  Convention  of  1864  known  as 
the  Red  Cross  Convention,  although  not  an  original 
party  to  it ;  and  likewise  to  the  convention  for  the  pro- 
tection of  industrial  property ;  in  both  of  which  almost 
all  the  commercial  nations  have  joined.  Such  conven- 
tions have  to  follow  the  usual  course  of  being  submitted 
to  the  Senate  for  its  advice  and  consent,  and  the  acces- 
sion of  the  United  States  being  made  in  the  terms  stated 
in  the  instrument,  and  the  same  proclaimed  by  the 
President. 

The  last  step  in  the  completion  of  a  treaty  is  its 
of&cial  publication.  This  is  accomplished  in  the  United 
States  by  the  formal  proclamation  of  the  President, 
attested  by  the  secretary  of  state ;  and  a  similar  act  is 
done  in  most  countries.  In  Great  Britain,  however,  it 
is  not  proclaimed  by  the  sovereign,  but  appears  in  the 
Official  Gazette  and  is  laid  before  Parliament. 

The  foregoing  review  of  the  method  and  form  of 
treaty-making  shows  that  while  the  Executive  as  a  rule 
initiates  and  conducts  the  negotiation  and  execution  of 
treaties,  the  functions  of  the  Senate  constitute  an  influ- 
ential element  in  this  important  branch  of  public  affairs. 
Severe  criticism  is  passed  upon  the  Senate,  sometimes 
at  home,  but  more  often  abroad,  for  its  action  respecting 
treaties.  It  is  frequently  charged  that  it  is  composed  of 
members  who  are  ignorant  of  international  law  and  of 
diplomatic  practice,  and  that  its  decisions  are  mainly 
influenced  by  partisan  politics  and  by  a  desire  to  thwart 


RATIFICATION  OF  TREATIES  283 

the  Executive.  At  no  time  in  our  history  has  the  com- 
mittee on  foreign  relations  o£  that  body  been  without 
controlling  members  thoroughly  conversant  with  inter- 
national law  and  foreign  affairs;  and,  though  not 
without  blemish,  the  personnel  of  that  body  may  be 
favorably  compared  in  intelligence  and  decorum  with 
any  other  legislative  body  of  European  governments. 
Its  members  are  on  most  questions  swayed  by  partisan 
considerations,  but  in  international  affairs  they  are 
generally  actuated  by  a  high  spirit  of  patriotism,  and 
the  conduct  of  the  Senate  respecting  treaties  has,  in  the 
main,  justified  the  wisdom  of  giving  it  participation  in 
the  treaty-making  power.  Justice  Story,  after  half  a 
century  of  experience  of  the  Constitution,  wrote :  "  It 
is  difficult  to  perceive  how  the  treaty-making  power 
could  have  been  better  deposited,  with  a  view  to  its 
safety  and  efficiency."  ^ 

^  2  Story  on  the  Constitution,  Cooley,  1873,  355. 


CHAPTER  XIV 

INTERPRETATION    OF   TREATIES 

The  signing  of  treaties  or  the  exchange  of  ratifications 
is  sometimes  accompanied  by  protocols  signed  by  the 
representatives  of  the  two  contracting  parties,  or  by 
declarations  on  the  part  of  one  of  the  representatives, 
designed  to  interpret  or  affect  in  some  way  the  terms  of 
the  treaties.  It  is  a  well-settled  principle  of  the  govern- 
ment of  the  United  States  that  no  such  document  can 
have  any  effect  whatever  upon  a  treaty  to  which  it  is  a 
party,  unless  the  document  has  been  submitted  to  the 
Senate  and  received  its  approval  in  the  same  manner  as 
is  required  for  the  treaty  itself. 

The  citation  of  a  few  cases  will  illustrate  this  prac- 
tice. When  the  treaty  of  1824  between  the  United 
States  and  Russia  was  about  to  be  exchanged,  the  Rus- 
sian minister  informed  Secretary  Adams  that  he  was 
instructed  by  his  government  to  file  an  explanatory 
note  at  the  time  of  the  exchange  of  ratifications,  stat- 
ing the  views  of  his  government  as  to  the  meaning  and 
effect  of  certain  articles  of  the  treaty.  Secretary  Adams 
informed  him  that  such  a  note  could  have  no  effect 
whatever  upon  the  treaty  unless  it  was  sent  to  the  Sen- 
ate with  the  treaty  and  received  its  approval,  intimating 
that  such  a  course  might  imperil  the  treaty.  He  advised 
the  minister  not  to  make  it  a  part  of  his  act  of  exchange 


INTERPRETATION  OF  TREATIES  285 

of  ratifications;  but  to  file  it  at  some  date  after  that 
event.  It  would  then  be  received  as  the  interpretation 
placed  upon  the  treaty  by  his  government.  The  minis- 
ter pursued  this  course.  This  explanatory  note,  while  it 
did  not  modify  the  treaty,  was  in  later  years  brought 
into  prominence  by  Secretary  Blaine's  discussion  with 
Lord  Salisbury  in  the  Bering  Sea  controversy,  and  was 
used  to  support  the  contention  of  the  United  States.^ 

After  the  ratification  of  the  treaty  of  peace  of  1848 
with  Mexico,  two  American  commissioners  were  sent  to 
that  country  to  exchange  the  ratifications.  Anticipat- 
ing difficulty  in  securing  the  action  of  the  Mexican 
government,  they  were  given  authority  to  make  certain 
verbal  explanations  as  to  the  meaning  and  purpose  of 
the  amendments  which  the  Senate  had  made  to  the 
treaty ;  but  on  their  arrival  they  found  it  necessary,  in 
order  to  secure  the  exchange,  to  put  their  explanations 
in  the  form  of  a  protocol  signed  by  them  and  the  Mexi- 
can minister  of  foreign  relations.  The  instrument  was 
held  to  have  no  effect  upon  the  treaty,  but  it  placed 
the  government  in  a  bad  fight  with  the  Mexicans  and 
its  conduct  was  severely  criticised  at  home.^ 

In  proceeding  to  the  exchange  of  the  Clayton-Bulwer 
treaty  of  1850  relative  to  the  Isthmus  Canal,  Sir  Henry 
Bulwer  filed  with  Secretary  Clayton  a  declaration  re- 
specting Honduras.  The  secretary  stated  that  as,  in 
his  judgment,  the  declaration  was  in  conformity  with 

^  Fur  Seal  Arbitration  :  Proceedings  of  the  Tribunal  of  Arbitration  at 
Paris,  1893,  U.  S.  Government  publication,  1895,  vol.  2,  Appendix, 
276. 

2  Foster 's  American  Diplomacy,  320,  and  documents  there  cited. 


286  THE  PRACTICE  OF  DIPLOMACY 

the  treaty,  he  did  not  think  it  necessary  to  send  it 
to  the  Senate  or  to  delay  the  exchange  of  ratifications. 
In  the  long  diplomatic  controversy  which  followed,  and 
which  was  only  terminated  by  the  Hay-Pauncef  ote  treaty 
of  1901,  this  declaration  played  a  prominent  part ;  but 
it  was  generally  held  in  the  United  States  that  it  had 
no  effect  on  the  treaty.* 

When  the  King  of  Spain  came  to  ratify  the  treaty  of 
1819  by  which  Florida  was  ceded  to  the  United  States 
he  attached  thereto  a  declaration  respecting  certain 
grants  of  land.  After  this  ratification  the  treaty  was 
again  submitted  to  the  Senate  and  the  declaration  ap- 
proved as  a  part  of  the  treaty.^ 

The  naturalization  treaty  of  1874  with  Turkey  had 
various  vicissitudes  because  of  the  declarations  attending 
the  exchange  of  ratifications.  The  treaty  when  sub- 
mitted to  the  Senate  was  approved  with  an  amendment. 
In  exchanging  the  ratifications  at  Constantinople  the 
Turkish  government  accompanied  that  act  with  a  mem- 
orandum giving  its  interpretation  to  the  treaty,  and  this 
was  accepted  by  the  American  minister  who  participated 
in  the  exchange.  When  reported  to  the  secretary  of 
state,  he  disavowed  the  act  of  the  American  minister, 
held  the  exchange  of  ratifications  to  be  invalid  in 
view  of  the  construction  placed  on  the  amended 
treaty  by  the  Turkish  memorandum,  and  the  treaty 
was  not  proclaimed.  Several  years  elapsed  in  which 
efforts    were   made     to   secure  the   acceptance   by  the 

1  2  Wharton's  Digest,  190,  192  ;  Life  of  Lewis  Cass,  Smith,  756. 

2  2  Wharton's   Digest,  281  ;  Treaties  and  Conventions  of  the  United 
States,  Spain. 


INTERPRETATION  OF  TREATIES  287 

Turkish  government  of  the  treaty  in  the  spirit  contem- 
plated by  the  Senate  amendment.  In  1889  the  American 
minister  reported  that  the  Turkish  government  was  will- 
ing to  accept  the  treaty  without  any  qualifying  construc- 
tion, but  as  fourteen  years  had  elapsed  since  the  action 
of  the  Senate,  it  was  deemed  advisable  to  secure  its 
approval  before  proclaiming  the  treaty.  The  Senate  ad- 
vised the  exchange  of  ratifications  with  the  understand- 
ing that  it  should  not  be  retroactive  in  its  effects. 
Whereupon  the  Turkish  government  asked  for  a  con- 
struction of  that  proviso,  which  was  given  by  the  sec- 
retary of  state  in  1891.  To  this  construction  that  gov- 
ernment again  desired  some  qualification  and  further 
correspondence  ensued.  In  1896  the  secretary  of  state 
offered  to  send  the  treaty  to  the  Senate  for  the  third 
time  to  obtain  its  advice  on  the  new  phase  of  the 
matter,  should  the  Turkish  government  so  desire,  and 
it  was  left  in  the  hands  of  the  American  minister  in 
Constantinople  to  reach  an  agreement.  But  owing  to 
the  tergiversation  characteristic  of  that  government,  no 
settlement  has  as  yet  been  reached  and  the  treaty  has 
not  been  put  in  operation.^ 

The  Senate  of  the  United  States  gave  its  consent  to 
the  ratification  of  the  treaty  of  peace  with  Spain  on 
February  6,  1899.  On  the  14th  of  the  same  month  it 
passed  a  resolution  that  the  ratification  of  the  treaty 
was  not  intended  as  an  incorporation  of  the  inhabitants 
of  the  Philippine  Islands  into  citizenship  of  the  United 
States.  The  Supreme  Court  held  that  this  resolution 
had  no  effect  in  modifying  the  text  of  the  treaty,  as  it 

'  U.  S.  For.  Rel.  1896,  929-937. 


288  THE  PRACTICE  OF  DIPLOMACY 

had    not  received   the   assent  of   the   President  or  of 
Spain. ^ 

The  general  principle  of  international  law  is  that, 
unless  expressly  stipulated  to  the  contrary,  a  treaty  is 
retroactive  in  its  effects,  and  is  binding  from  the  date 
of  its  signature ;  but  the  United  States  Supreme  Court 
has  held  that  so  far  as  concerns  individual  rights  or 
parties  interested,  it  does  not  operate  until  after  ex- 
change of  ratifications.^  Treaties  are  designated  or 
named  by  the  date  of  their  signature.  The  treaty  with 
Spain,  signed  in  1819,  was  not  proclaimed  till  1821, 
but  is  always  referred  to  as  the  treaty  of  1819. 

A  treaty  is  made  by  the  Constitution  the  supreme 
law  of  the  land,  and  operates  as  such  in  all  matters  not 
requiring  legislative  action.  But  when  dependent  on,  or 
imperfect  without,  legislative  action  it  does  not  take 
effect  until  such  action  is  had.  A  treaty  may,  therefore, 
be  in  force  as  to  some  of  its  provisions  and  suspended 
as  to  others  until  Congress  shall  legislate.  In  order  to 
remove  all  doubt,  it  is  customary  in  commercial  treaties 
which  change  the  existing  revenue  laws  to  insert  a 
clause  that  they  are  not  to  go  into  effect  until  the  neces- 
sary legislation  is  enacted  by  Congress.  The  Hawaiian 
reciprocity  treaty  contained  the  provision  that  "  the  pre- 
sent convention  shall  take  effect  as  soon  as  it  .  .  .  shall 
have  been  ratified  and  duly  proclaimed  on  the  part  of 
the  government  of  the  United  States,  but  not  until  a 
law  to  carry  it  into  operation  shall  have  been  passed  by 
the  Congress  of  the  United  States  of  America."  A  sim- 
ilar provision  was  inserted  in  the  Canadian  reciprocity 

1  183  U.  S.  Rep.  176.  «  q  Peters'  Rep.  G91  j  9  Wall.  32. 


INTERPRETATION  OF  TREATIES  289 

convention  of  1854,  and  in  that  with  Mexico  of  1883. 
Although  the  latter  was  duly  ratified  by  the  Senate  and 
proclaimed  by  the  President,  Congress  failed  to  pass 
the  law  necessary  to  carry  it  into  effect  within  the  time 
fixed  by  the  convention.  The  period  for  that  purpose 
was  twice  extended  by  protocols  approved  by  the  Sen- 
ate, but  Congress  still  failing  to  pass  the  necessary  legis- 
lation, the  treaty  lapsed.  The  Cuban  reciprocity  treaty 
of  1903  as  negotiated  contained  no  such  provision,  but 
the  Senate  amended  it  by  inserting  one.^ 

As  already  noted,  the  sovereign  in  Great  Britain 
possesses  the  power  of  ratification  of  treaties,  but  they 
are  always  laid  before  Parliament  after  ratification  ;  and 
if  they  contain  provisions  which  constitute  a  charge 
upon  the  people  or  alter  the  law  of  the  land,  as  to  these 
they  are  inoperative  until  Parliament  legislates.  On  this 
question  Mr.  Dallas  writes  : 

"  The  commercial  convention  recently  entered  into 
with  France,  contains  an  express  declaration  that  it 
shall  not  be  valid  unless  *  Her  Britannic  Majesty  shall 
be  authorized  by  the  assent  of  her  Parliament  to  exe- 
cute the  engagements  contracted  by  her  in  its  several 
articles.'  Such  a  clause  is,  I  am  assured,  always  intro- 
duced in  modern  treaties  of  this  kind ;  and  upon  the 
present  occasion  its  exigency  was  met  by  the  adoption 
of  a  joint  address  to  the  Queen  approving  comprehen- 
sively the  diplomatic  programme. 

"  I  believe  it  safe  to  say,  now-a-days,  that  a  treaty 
which  calls  for  a  law  in  order  to  be  executed  may  be 
constitutionally  nullified  by  the  refusal  of  either  House, 

1  Treaties  in  Force,  1904,  Cuba. 


290  THE  PRACTICE  OF  DIPLOMACY 

the  Commons  or  the  Lords,  to  enact  that  law.  If  It  he 
necessary  to  assent,  it  is  competent  to  dissent.  Treaties 
requiring  appropriations  of  money ;  treaties  establishing 
tariffs,  or  mutual  terms  of  interchanging  products ;  and 
treaties  relinquishing  territorial  dominions,  perhaps,  sink 
into  the  power  of  Parliament."  ^ 

A  treaty  has  the  legal  effect  of  repealing  all  federal 
laws  in  conflict  with  it,  and  it  likewise  overrides  all 
state  constitutions  and  laws.  The  term  "supreme  law" 
in  the  Constitution,  applied  to  treaties,  gives  them  no 
higher  standing  or  greater  force,  however,  than  an  act 
of  Congress ;  both  are  upon  the  same  footing,  and  the 
latest  enactment  controls.  Mr.  Jay  in  "  The  Federalist" 
expressed  the  opinion  that  a  treaty  could  not  be  re- 
pealed by  the  act  of  Congress  alone,  but  that  being  a 
contract  its  repeal  could  be  brought  about  only  by  the 
joint  action  of  the  high  contracting  parties ;  but,  as  we 
shall  see,  the  Supreme  Court  has  held  that  it  can  at 
least  be  made  nugatory  by  a  law  of  Congress.^ 

In  case  the  provisions  of  a  treaty  are  in  conflict  with 
the  Constitution  the  latter  prevails,  and  the  treaty  can- 
not be  enforced  in  the  courts.  The  treaty  of  1853, 
between  the  United  States  and  France,  contained  a  pro- 
vision that  consuls  "  shall  never  be  compelled  to  appear 
as  witnesses  before  the  courts."  M.  Dillon,  the  French 
consul  at  San  Francisco,  was  summoned  as  a  witness  in 
a  criminal  case  pending  in  the  United  States  District 
Court,  and  he  pleaded  this  stipulation  of  the  treaty; 
but  the  court  held  that  it  could  have  no  force  or  effect, 

»  2  Dallas'  Letters  from  London,  353. 
2  The  Federalist  (Lodge),  405. 


INTERPRETATION   OF  TREATIES  291 

because  it  was  in  conflict  with  Amendment  VI  of  the 
Constitution  of  the  United  States  that  "  in  all  criminal 
prosecutions  the  accused  shall  enjoy  the  right  ...  to 
be  confronted  with  the  witnesses  against  him ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor, 
etc."  The  French  government  complained  that  the 
action  of  the  court  was  a  violation  of  the  treaty.  The 
secretary  of  state  successfully  maintained  that  the 
stipulation  cited  was  of  no  force,  "  because  the  Consti- 
tution is  to  prevail  over  a  treaty  where  the  proAasions 
of  the  one  come  in  conflict  with  the  other.  It  is  not 
within  the  competence  of  either  Congress  or  the  treaty- 
making  power  to  modify  or  restrict  the  operation  of 
any  provision  of  the  Constitution  of  the  United  States." 
The  treaty  of  1853  is  still  in  operation ;  but  the  clause 
cited  is  not  observed  in  the  United  States.^ 

A  treaty  is  a  contract  between  two  free  parties,  but 
when  it  is  sought  to  apply  to  it  the  principles  of  mu- 
nicipal law  and  to  execute  it  as  a  legal  obligation,  the 
defect  of  international  law,  as  a  code  to  be  enforced, 
at  once  becomes  apparent.  The  essential  element  of  a 
sovereign  state  is  its  independence,  and  independence 
is  inconsistent  with  legal  obligation.  There  is  no  court 
with  power  to  enforce  international  law  and  bring  a 
recusant  nation  to  the  bar  of  justice  to  answer  a  charge 
of  violation  of  a  contract.  It  is  commonly  said  that  a 
country  observes  the  stipulations  of  a  treaty  no  longer 
than  it  suits  its  interests  or  its  convenience  to  observe 
them ;  but  this  has  never  been  universally  true  in  modern 

1  In  re  Dillon,  2  Sawyer's  Reports,  564  ;  1  Wharton's  Digest,  665 ; 
Treaties  in  Force,  1904,  France. 


292  THE   PRACTICE   OF  DIPLOMACY 

times,  and  I  am  happy  to  believe  it  is  less  true  to-day 
than  ever  before.  The  elevated  principles  of  inter- 
national law  are  a  great  restraint  upon  the  conduct  of 
nations,  and  this  is  shown  in  a  marked  degree  by  their 
action  respecting  treaty  obligations.  While  it  is  not 
possible  to  apply  to  these  instruments  all  the  principles 
of  municipal  law  respecting  contracts,  many  of  them 
are  recognized  and  respected. 

I  give  some  of  the  accepted  rules  which  determine 
the  validity  of  a  treaty,  and  refer  the  reader  to  the  text- 
books for  fuller  details.  The  agents  must  not  only  be 
authorized  to  negotiate,  but,  as  we  have  seen,  the  treaty 
must  be  duly  ratified  in  the  form  required  in  each 
country.  In  the  United  States  it  must  be  such  as  the 
President  and  the  Senate  have  the  power  under  the 
Constitution  to  make.  The  contracting  party  must  be  a 
sovereign  and  independent  state.  Neither  the  Kingdom 
of  Hungary,  nor  the  Governor-General  of  India,  for 
example,  can  make  a  valid  treaty ;  nor  can  a  dethroned 
monarch  nor  a  revolted  and  unrecognized  province.  It 
must  be  possible  of  execution.  Material  errors  may 
vitiate  it.  Uncertainty  as  to  facts  may  make  it  difficult  of 
execution.  The  treaty  of  peace  of  1783  named  the  St. 
Croix  River  as  part  of  the  boundary  between  the  United 
States  and  the  British  possessions,  but  owing  to  the 
imperfect  geographical  knowledge  of  the  period  it  be- 
came impossible  to  locate  such  river.  It  is  an  interesting 
fact  in  this  connection  that,  in  an  effort  to  ascertain 
the  intent  of  the  negotiators,  the  commission  to  whom 
the  subject  was  submitted  took  the  deposition  of  John 
Adams   and   John  Jay,  two  of  the  negotiators,  and 


INTERPRETATION  OF  TREATIES  293 

admitted  as  evidence  a  letter  of  Benjamin  Franklin,  the 
other  American  negotiator.  There  are  two  Belgrades 
bearing  the  name  mentioned  in  the  treaty  of  Paris  of 
1856  without  any  clear  intent  to  which  one  reference 
is  made.  The  Canadians  maintained  that  the  Portland 
Canal  laid  down  on  the  modern  maps  is  not  the  body  of 
water  intended  by  that  name  in  the  Anglo-Russian 
treaty  of  1825. 

It  has  been  insisted  that  a  nation  cannot  be  held  by 
a  treaty  of  alliance  or  guaranty  to  an  immoral  or  an 
unjust  war.  Moral  obligations  are,  however,  difficult  of 
determination.  International  contracts  are  usually  sup- 
posed to  be  entered  upon  in  the  interest  and  according  to 
the  wishes  of  the  people  whose  governments  make  them, 
but  they  are  often  directly  the  reverse.  The  case  of 
Louisiana  illustrates  the  indifference  with  which  these 
interests  and  wishes  are  sometimes  treated.  By  a  secret 
treaty  between  France  and  Spain  the  inhabitants  of  that 
province  were  transferred  to  the  latter  power ;  by  another 
secret  treaty  they  were  restored  to  France,  one  of  the 
leading  motives  for  which  was  a  purely  personal  question 
relating  to  the  royal  families;  and  France,  in  violation 
of  its  faith  with  Spain  and  before  having  taken  posses- 
sion, sold  the  province  to  the  United  States;  the  action 
in  each  instance  being  taken  without  regard  to  the  inter- 
ests or  wishes  of  the  inhabitants  concerned. 

It  is  to  the  general  advantage  of  nations  that  a  treaty 
extorted  by  war  shall  be  held  to  be  binding.  The  plea 
of  duress  which  would  vitiate  a  contract  under  munici- 
pal law  is  not  applicable  to  nations.  At  the  same  time, 
a  treaty  imposed  by  force  of  arms  does  not  carry  with  it 


294  THE  PRACTICE  OF  DIPLOMACY 

such  moral  obligation  for  its  observance  as  do  those 
voluntarily  entered  into  by  governments  consulting 
their  mutual  interests  and  convenience.  The  treaties 
made  with  Napoleon  I  were  observed  only  so  long  as  he 
had  the  military  force  to  command  their  observance. 
France  accepted  the  terms  imposed  by  Germany  in 
1871,  paid  the  enormous  indemnity,  and  transferred 
Alsace  and  Lorraine ;  but  few  Frenchmen  recognize 
any  obligation  to  respect  the  treaty  when  it  shall  have 
become  safe  to  repudiate  it.  While  duress  is  not  a  suf- 
ficient plea  for  a  nation,  it  is  as  to  a  negotiator.  Santa 
Anna,  President  of  Mexico,  leading  a  military  expedi- 
tion against  the  Texans,  was  captured  by  the  latter,  and 
while  a  prisoner  made  a  treaty  of  peace,  but  it  had  no 
validity  for  that  reason. 

Differences  have  arisen  between  nations  occasioned 
by  a  variance  in  the  text  of  treaties.  Usually  a  govern- 
ment adheres  to  the  text  in  its  own  language,  but  it  is 
sometimes  stipulated  what  text  shall  control  in  case  of 
conflict  of  interpretation.  In  the  treaty  between  the 
United  States  and  China  of  1903  it  is  provided  that  "  in 
the  event  of  there  being  any  difference  of  meaning 
between  them  [the  texts]  ,  the  sense  as  expressed  in  the 
Engflish  text  shall  be  held  to  be  the  correct  one."  A 
variance  appearing  in  the  treaty  of  1819  with  Spain, 
it  was  held  by  the  United  States  Supreme  Court  that 
the  Spanish  version  should  be  accepted,  as  being  that 
of  the  party  granting  the  concession.^  It  has  also  been 
held  that  a  treaty  with  an  Indian  tribe  must  be  inter- 
preted not  according  to  the  technical  meaning  of  its 

1  3  Peters'  U.  S.  Rep.  741. 


INTERPRETATION  OF  TREATIES  295 

words,  as  understood  by  lawyers,  but  in  the  sense  in 
which  it  is  naturally  understood  by  the  Indians.^  A  con- 
troversy has  been  carried  on  for  years  between  the 
United  States  and  Turkey  as  to  the  exterritorial  rights 
of  Americans  in  the  Ottoman  Empire,  arising  out  of  a 
variance  in  the  texts  of  the  treaty  of  1830,  and  various 
efforts  to  reconcile  the  differences  in  the  texts,  as  well 
as  their  interpretation,  have  failed ;  the  subject  having 
been  at  one  time  referred  to  the  Senate  for  its  views. 
It  seems,  however,  to  have  been  at  last  solved  under 
the  accepted  principle  of  "the  most  favored  nation" 
treatment,  Turkey  having  granted  to  other  nations  the 
privileges  contended  for  by  the  United  States.^ 

The  Supreme  Court  of  the  United  States  has  had 
frequent  occasion  to  interpret  the  provisions  of  treaties 
of  the  United  States,  and  its  high  standing  at  home  and 
abroad  has  given  a  special  value  to  its  decisions,  which 
have  contributed  greatly  to  enlarge  and  establish  the 
sounder  principles  of  international  law.  A  few  of  those 
decisions  may  be  profitably  cited  in  connection  with  the 
topic  under  consideration. 

A  provision  in  the  treaty  of  1795  with  Spain  for  the 
protection  of  vessels  in  time  of  war  by  means  of  a  pass- 
port, of  which  a  copy  of  the  form  to  be  used  was  to  be 
annexed  to  the  treaty,  was  decided  to  be  inoperative 
because  the  form  was  not  annexed  as  stipulated.^ 

President  Jefferson  was  of  the  opinion  that  the  treaty 
for  the  cession  of  Louisiana  was  not  authorized  by  the 

1  175  U.  S.  Rep.  1. 

2  Treaties  and  Conventions  of  United  States,  Davis'  Notes,  Ottoman 
Empire;  U.  S.  For.  Rel.  1890,  914. 

«  6  Wheaton's  Rep.  1. 


296  THE  PRACTICE  OF  DIPLOMACY 

Constitution.  Chief  Justice  Marshall,  however,  when  the 
question  came  before  the  court,  held  that  "  the  Constitu- 
tion confers  absolutely  on  the  government  of  the  Union 
powers  of  making  war  and  of  making  treaties;  conse- 
quently, that  government  possesses  the  power  of  acquir- 
ing territory,  either  by  conquest  or  by  treaty."^ 

In  a  number  of  instances  the  court  has  sustained  the 
provisions  of  treaties  in  relation  to  the  inheritance  and 
disposing  by  aliens  of  property,  real  and  personal,  in  the 
states  of  the  Union,  regardless  of  state  statutes  to 
the  contrary,  even  though  it  is  admitted  that  respecting 
this  Congress,  in  the  absence  of  a  treaty,  would  have  no 
power  to  legislate.^  In  the  last  of  those  cases  cited,  Mr. 
Justice  Field,  delivering  the  opinion  of  the  court,  said: 
"The  treaty  power,  as  expressed  in  the  Constitution,  is 
in  terms  unlimited  except  by  those  restraints  which  are 
found  in  that  instrument  against  the  action  of  the  gov- 
ernment or  of  its  departments,  and  those  arising  from  the 
nature  of  the  government  itself  or  of  that  of  the  States. 
It  would  not  be  contended  that  it  extends  so  far  as  to 
authorize  what  the  Constitution  forbids,  or  a  change  in 
the  character  of  the  government  or  in  that  of  one  of  the 
States,  or  a  cession  of  any  portion  of  the  latter,  without 
its  consent.  But  with  these  exceptions,  it  is  not  per- 
ceived that  there  is  any  limit  to  the  questions  which  can 
be  adjusted  touching  any  matter  which  is  properly  the 
subject  of  negotiation  with  a  foreign  country." 

Mr.  Calhoun,  a  strict  constructionist  of  the  Constitu- 
tion, when  secretary  of  state,  wrote  Mr.  Wheaton  as 

1  1  Peters,  542. 

2  2  Wheaton,  275  ;  10  Wheaton,  181;  100  U.  S.  Rep.  483. 


INTERPRETATION  OF  TREATIES  297 

follows :  "  The  treaty-making  power  has  been  regarded  to 
be  so  comprehensive  as  to  embrace,  with  few  exceptions? 
all  questions  that  can  possibly  arise  between  us  and  other 
nations,  and  which  can  only  be  adjusted  by  their  mutual 
consent,  whether  the  subject-matter  be  comprised  among 
the  delegated  or  the  reserved  powers."  ^ 

1  2  Wharton's  Digest,  67. 

For  an  exhaustive  treatise  on  this  subject,  see  The  Treaty-Making  Power 
of  the  United  States,  by  Charles  Henry  Butler,  1902.  For  a  brief  discus- 
sion, Treaties,  their  Making  and  Enforcement,  by  Samuel  B.  Crandall,  1904. 


CHAPTER  XV 

TERMINATION    OF   TREATIES 

Treaties  may  be  terminated  in  various  ways.  They 
often  come  to  an  end  by  limitation  or  when  the  objects 
for  which  they  were  made  are  accompHshed.  Others 
contain  a  provision  that  they  shall  remain  in  force  for 
a  fixed  period,  and,  thereafter,  indefinitely  until  one  of 
the  parties  gives  notice  of  its  desire  to  terminate  them, 
which  is  styled  a  "  denunciation."  Treaties  also  come 
to  an  end  when  one  of  the  contracting  countries  is  an- 
nexed to  or  absorbed  by  another  nation,  as  in  the  case 
of  Texas  and  Hawaii,  but  this  rule  was  not  made  appH- 
cable  to  the  states  which  were  united  to  form  the  Ger- 
man Empire  in  1871.  When  the  French  occupied  Mad- 
agascar in  1895  a  question  was  raised  by  the  United 
States  as  to  the  status  of  its  treaty  of  1881  with  that 
island.  The  French  government  replied  that  the  treaty 
was  "  inconsistent  with  the  new  order  of  things,"  but 
that  it  was  its  intention  to  extend  to  the  island  the 
conventions  with  the  United  States  applicable  to  France 
and  French  possessions.^ 

Treaties  usually  expire  when  the  confederation  which 
made  them  is  dissolved,  and  the  several  states  reassume 
their  independence,  an  instance  of  this  kind  being  the 
Peru-Bolivia  confederation  of  1839 ;  so,  also,  when  the 

>  U.  S.  For,  Rel.  1896,  117  £f. 


TERMINATION   OF  TREATIES  299 

internal  composition  of  a  state  is  so  changed  as  to  render 
the  treaty  inapplicable  to  the  new  order  of  things,  as  the 
various  changes  of  the  Netherlands,  which  rendered  the 
treaty  with  the  United  States  of  1782  inoperative.  The 
United  States  has  a  laroe  number  of  treaties  which  have 
expired  for  the  reasons  above  stated.^ 

Some  treaties  may  be  partially  in  force  and  partially 
abrogated.  The  British  treaty  framed  by  the  joint  high 
commission  of  1871  is  of  this  character.  It  provided  for 
four  tribunals  of  arbitration,  which  soon  concluded  their 
labors  ;  some  of  its  provisions  were  without  limit  as  to 
time,  as  the  free  navigation  of  certain  rivers  ;  some  were 
for  a  fixed  period  and  have  been  denounced ;  and  as  to 
others  a  difference  of  opinion  exists  as  to  whether  or  not 
they  are  in  force. 

Change  of  circumstances  may  modify  or  dissolve  the 
obligation  of  treaties.  It  was  quite  common  in  former 
times  to  make  treaties  "perpetual  and  eternal,"  and 
many  at  the  present  day  in  their  terms  run  without  limit 
as  to  time  ;  but  no  stipulation  can  be  made  so  unalter- 
able and  binding  that  time  and  circumstances  cannot 
terminate  it.  Francis  I  and  Henry  VIII  concluded  a 
"  perpetual  peace  "  in  1527  between  France  and  Eng- 
land, and  on  the  one  part  there  were  given  as  hostages 
two  archbishops,  eleven  bishops,  twenty-eight  nobles, 
and  thirteen  towns ;  but  even  these  did  not  prevent 
a  fresh  war  in  the  same  generation.  The  declaration  of 
the  conference  of  London  of  1871,  brought  about  by 
the  action  of  Russia  respecting  the  Black  Sea,  that  "  no 
power  can  liberate  itself  from  the  engagements  of  a 

^    Treaties  and  Conventions  of  U.  S.,  Davis'  Notes,  1232,  etc. 


300  THE  PRACTICE  OF  DIPLOMACY 

treaty,  nor  modify  the  stipulations  thereof,  unless  with 
the  consent  of  the  contracting  powers,"  is  a  principle  of 
international  law  of  qualified  application  in  practice,  and 
the  nineteenth  century  presented  many  instances  of  its 
non-observance.  It  is  not  uncommon  in  the  practice 
of  nations  for  a  government  to  suspend,  to  modify,  to 
declare  abrogated,  or  to  disregard  treaties  because  of 
changed  conditions.  Many  instances  might  be  cited  of 
disregard  of  treaty  stipulations  during  the  past  century 
by  European  nations  because  of  changed  conditions.  One 
of  the  most  notable  was  that  by  Napoleon  III.  He  had 
entered  into  treaty  stipulations  by  means  of  a  concordat, 
which  had  thrown  about  it  the  religious  solemnity  and 
obligation  of  an  engagement  between  His  Holiness, 
the  Pope,  and  a  devoted  Catholic  sovereign.  By  this 
convention  Napoleon  guaranteed,  by  the  presence 
of  a  French  army  in  Rome,  the  maintenance  of  the 
temporal  authority  in  the  Papal  States  of  Italy.  But  in 
a  few  years  thereafter  the  Kingdom  of  Sardinia  had,  by 
war  and  the  action  of  the  people,  become  the  Kingdom 
of  Italy ;  Garibaldi  had  overthrown  the  King  of  the 
Sicilies  ;  and  Victor  Emanuel  had  entered  the  Papal 
States.  The  French  army  withdrew  from  Rome,  and 
the  Pope  lost  all  of  his  temporal  possessions.  Neither 
treaty  stipulations  nor  his  devotion  to  the  Church  could 
hold  Napoleon  to  his  engagement.  Both  he  and  the 
other  governments  of  Europe  recognized  that  the  changed 
conditions  had  released  him. 

Other  similar  instances  might  be  given,  but  I  confine 
further  citations  to  cases  which  have  occurred  in  Ameri- 
can history.    The  treaty  of  peace  with  Great  Britain  of 


TERMINATION  OF  TREATIES  301 

1783  provided  that  the  Mississippi  River  should  "  for- 
ever remain  free  and  open  to  the  subjects  of  Great 
Britain,"  under  the  belief  that  it  had  its  source  or  lay 
partly  in  British  territory.  Subsequent  explorations 
revealed  the  misinformation  of  the  negotiators,  and 
after  the  acquisition  of  Louisiana  the  stipulation  of 
1783  ceased  to  be  effective.  By  the  treaty  of  alliance 
with  France  of  1778  the  United  States  agreed  to  de- 
fend the  French  possessions  in  the  West  Indies  and 
give  French  privateers  certain  privileges  in  its  ports. 
After  the  French  Revolution  occurred,  which  overthrew 
Louis  XVI,  with  whom  the  treaty  had  been  made,  the 
new  government  of  France  demanded  that  the  United 
States  should  make  good  the  stipulations  of  the  treaty  of 
1778.  The  position  taken  by  our  government,  advocated 
by  Hamilton  and  opposed  by  Jefferson,^  was  that  under 
the  changed  conditions  the  United  States  was  released 
from  the  treaty,  and  President  Washington  accordingly 
issued  his  proclamation,  in  1793,  declaring  neutrality 
in  the  war  between  France  and  the  other  European 
powers.  The  treaty  was  abrogated  by  an  express  act  of 
Congress  in  1798.  France  did  not,  however,  recognize 
this  act  as  a  finality,  and  the  treaty  was  mutually  ter- 
minated by  the  convention  of  1800. 

In  1815  a  commercial  treaty  was  negotiated  between 
the  United  States  and  Great  Britain,  by  which  various 
ports  and  places  before  closed  to  American  vessels  were 
opened  to  them,  among  which  was  the  island  of  St. 
Helena.    The  treaty  was  duly  ratified  by  the  Senate, 

^  For  Hamilton's  views,  4  Works  of  Hamilton  (Lodge),  74  ;  for  Jef- 
ferson's view,  6  Jefferson's  Writings,  219. 


802  THE  PRACTICE  OF  DIPLOMACY 

but  meanwhile  the  battle  of  Waterloo  had  been  fought, 
Napoleon  dethroned,  and  it  was  determined  that  he 
should  be  imprisoned  at  St.  Helena.  Thereupon,  with- 
out asking  the  assent  of  the  United  States,  the  British 
minister  gave  notice  that  "  in  consequence  of  events 
which  have  happened  in  Europe  subsequent  to  the  sig- 
nature of  the  convention,"  the  island  of  St.  Helena 
would  be  excluded  from  the  effects  of  the  treaty.  Six 
years  afterwards,  upon  the  death  of  Napoleon,  notice 
was  given  to  the  secretary  of  state  by  the  British  min- 
ister that  the  stipulations  of  the  treaty  regarding  St. 
Helena  would  be  effective.  The  reason  for  the  suspen- 
sion of  the  treaty  clause  was  a  substantial  one,  and  the 
power  to  suspend  was  freely  exercised  by  one  of  the 
parties  to  the  contract  without  asking  the  consent  of 
the  other. 

Another  convention  between  the  United  States  and 
Great  Britain  furnishes  an  illustration  of  how  changed 
conditions  may  affect  treaties.  By  the  convention  or  ar- 
rangement of  1817  it  was  agreed  that  the  naval  armament 
of  the  two  nations  on  the  Great  Lakes  should  be  reduced 
to  four  vessels,  none  of  which  should  exceed  one  hun- 
dred tons  burden  nor  be  armed  with  more  than  a  single 
eighteen-pound  cannon.  But  in  1837-38,  during  the 
Canadian  rebellion,  the  British  government  largely  in- 
creased its  naval  armament  without  asking  the  permis- 
sion of  the  United  States ;  and  during  our  civil  war 
the  government  of  the  United  States  did  likewise.  Each 
government  has  for  many  years  past  disregarded  the  pro- 
vision as  to  the  size  of  its  vessels  carrying  cannon  used 
in  the  revenue  service,  and  the  United  States  has  for 


TERMINATION  OF  TREATIES  303 

years  maintained  on  the  upper  lakes  a  naval  vessel  con- 
siderably larger  in  tonnage  and  armament  than  allowed 
by  the  treaty.  The  two  governments  tacitly  recognize 
that  the  region  in  question  has  outgrown  the  conditions 
under  which  the  convention  was  made.  When  it  was 
negotiated  wood  was  used  in  the  construction  of  vessels, 
and  sail  was  the  propelling  power.  The  conditions  of 
navigation  have  been  transformed.  So,  also,  at  that  time 
almost  no  commerce  existed,  and  a  very  sparse  popula- 
tion inhabited  the  country  bordering  the  Great  Lakes. 
All  this  has  changed.  The  convention  of  1817  has  be- 
come a  dead  letter  as  to  the  provisions  cited,  and  this, 
too,  without  any  express  agreement  between  the  parties 
to  it. 

The  Clayton-Bulwer  treaty  of  1850  was  negotiated,  in 
part,  to  secure  the  construction  of  a  particular  inter- 
oceanic  canal,  by  a  private  corporation  and  under  plans 
then  set  on  foot,  but  the  project  came  to  nought.  Since 
the  treaty  was  made,  more  than  a  half -century  ago, 
a  great  transformation  has  occurred  in  the  material  and 
social  conditions  of  this  continent  and  in  the  political 
development  and  policy  of  the  United  States.  From 
twenty-three  millions  of  people  it  has  grown  to  eighty 
millions,  the  population  of  the  Pacific  coast  has  increased 
a  hundredfold,  and  the  territorial  possessions  on  the 
coast  of  this  continent  have  more  than  doubled  in  area  by 
the  acquisition  of  Alaska.  The  Hawaiian  and  Philippine 
Islands  with  their  millions  of  people  have  been  acquired. 
Since  the  negotiation  of  the  Clayton-Bulwer  treaty  the 
whole  face  of  affairs  in  the  Orient  has  changed.  And 
from  a  limited  continental  power,  with  its  population 


304  THE  PRACTICE  OF  DIPLOMACY 

mainly  on  the  Atlantic  coast,  the  United  States  has 
grown  to  a  world-power,  with  greatly  enlarged  interests 
in  the  Pacific  Ocean. 

It  was  idle  to  contend  that  a  nation  which  has  under- 
gone such  marvelous  development  and  transformation 
should  be  held  to  the  terms  of  a  treaty  made  a  half- 
century  ago  to  accomplish  an  enterprise  then  in  life, 
but  long  since  extinct.  T.  J.  Lawrence,  author  of  one  of 
the  latest  works  on  international  law  and  professor  in 
Cambridge  University,  who  combated  Secretary  Freling- 
huysen's  contention  that  Great  Britian  had  violated 
the  treaty  in  the  creation  of  the  Belize  colony,  has  said 
that  if  the  position  were  taken  "  that  the  United  States 
have  grown  so  great  since  the  treaty  of  1850  was 
signed,  and  their  interests  in  the  canal  are  so  far  su- 
perior to  those  of  any  other  power,  that  they  ought  to 
have  a  preponderating  voice  in  determining  the  rules 
to  be  adopted  .  .  .  such  a  position  would  have  been  im- 
pregnable." ^ 

The  committee  on  foreign  relations  of  the  Senate 
presented  to  the  Fifty-first  Congress  a  report  containing 
a  review  of  the  history  of  the  treaty  of  1850,  and  it 
reported  to  the  Senate  its  conclusion  that  it  had  become 
obsolete,  and  that  "the  United  States  is  at  present 
under  no  obligation,  measured  either  by  the  terms  of 
the  convention,  the  principles  of  public  law  or  good 
morals,  to  refrain  from  promoting  in  any  way  that  it 
may  deem  best  for  its  just  interests  the  construction  of 
this  Canal,  without  regard  to  anything  contained  in 
the  convention  of  1850. "  To  this  report  are  appended 

1  Essays  ou  Modern  International  Law,  by  T.  J.  Lawrence,  2d  ed.  195. 


TERMINATION  OF  TREATIES  305 

the  names  of  every  member  of  the  committee,  and  among 
them  two  who  have  held  the  office  of  secretary  of  state, 
Messrs.  Evarts  and  Sherman.  ^ 

Influenced  by  the  strong  public  sentiment  of  the 
country,  Secretary  Hay,  in  the  treaty  which  he  nego- 
tiated with  the  British  ambassador  in  1900  respecting 
the  interoceanic  canal  sought  to  bring  about  the  abro- 
gation of  the  treaty  of  1850.  But  when  it  was  submit- 
ted to  the  Senate,  that  body,  fearing  that  the  purpose 
was  not  stated  with  sufficient  distinctness,  inserted  an 
amendment  stating  in  explicit  terms  that  the  treaty  of 
1850  was  superseded  by  the  new  treaty.  When  this 
amendment  was  presented  to  the  British  government  it 
agreed  to  the  clause,  and  in  the  new  convention  which 
it  became  necessary  to  make,  the  Senate's  amendment 
constituted  the  first  article,  and  the  obsolete  treaty 
came  to  an  end.'^ 

The  general  rule  of  international  law  is  that  war  ter- 
minates all  treaties  between  belligerents,  but  this  is  subject 
to  exceptions.  The  effect  of  war  upon  treaties  was  a 
source  of  labored  and  heated  discussion  at  and  following 
the  peace  negotiations  of  1814  at  Ghent.  The  conten- 
tion of  the  American  commissioners  was  that  the  treaties 
of  1783  and  1794  were  only  suspended  during  the  war 
and  that  they  revived  with  peace.  Their  position  was 
that  the  treaty  of  independence  of  1783  was  in  the  na- 
ture of  a  partition  between  members  of  the  British  Empire 
and  that  its  provisions  were  not  of  such  a  nature  as  to 
be  included  in  the  general  rule  applicable  to  treaties  ter- 

1  S.  Rep.  1944,  p.  191,  51st  Cong.,  2d  Sess. 

2  Treaties  iu  Force,  1904,  p.  381,  Art.  I. 


306  THE  PRACTICE  OF  DIPLOMACY 

minated  by  war.  The  British  commissioners  insisted  that 
war  put  an  end  to  them  and  that  they  could  be  revived 
only  by  an  express  agreement  to  that  effect.  They  ad- 
mitted that  independence  was  an  unalterable  fact,  and 
they  agreed  upon  provisions  for  an  adjustment  of  bound- 
aries, but  stubbornly  refused  to  revive  the  fishery  privi- 
leges recognized  in  the  peace  convention  of  1783;  and 
these  were  only  partially  secured  by  the  later  convention 
of  1818.  Some  treaties  contain  express  provisions  that 
certain  of  its  stipulations  shall  remain  in  force  during  war, 
such  as  article  22  of  the  treaty  of  1848  with  Mexico 
which  provides  rules  for  the  conduct  of  hostilities. 

The  Supreme  Court  has  held  that  "  treaties  stipulating 
for  permanent  rights,  and  general  arrangements,  and 
professing  to  aim  at  perpetuity,  and  to  deal  with  the  cause 
of  war  as  well  as  of  peace,  do  not  cease  on  the  oc- 
currence of  war,  but  are  at  most  only  suspended  while  it 
lasts ;  and  unless  they  are  waived  by  the  parties,  or  new 
and  repugnant  stipulations  are  made,  they  revive  in  their 
operation  at  the  return  of  peace."  Such  seems  to  be  the 
position  of  English  courts.  The  Master  of  the  Rolls, 
referring  to  privileges  given  to  holders  of  lands  and 
their  heirs  or  assigns,  said,  "it  is  a  reasonable  construc- 
tion that  it  was  the  intention  of  the  treaty  that  the 
operation  of  the  treaty  should  be  permanent  and  not 
depend  upon  the  continuance  of  a  state  of  peace."  ^ 

In  order  to  remove  any  doubts  as  to  the  status  of 
preexisting  treaties,  nations  in  their  treaties  of  peace 
usually  make  an  express  declaration  on  the  subject.    The 

1  8  Wheaton's  U.  S.  Reports,  494;  10  Wheaton,  182  ;  1  Russel  and 
Mylne,  663  ;  Twiss'  Rights  and  Duties  in  Time  of  Peace,  420, 


TERMINATION  OF  TREATIES  307 

treaty  of  peace  of  1848  with  Mexico  specifically  revived 
the  treaty  of  amity  and  commerce  of  1831.  Duiing  the 
peace  negotiations  at  Paris  in  1898,  the  American  com- 
missioners proposed  that  all  treaties  in  force  before  the 
war  be  held  to  continue  in  force.  The  Spanish  commis- 
sioners were  not  prepared  to  consider  that  subject,  and 
no  provision  was  inserted  in  the  peace  convention.  A 
new  treaty  of  amity  and  commerce,  however,  negotiated 
in  1902,  abrogated  and  annulled  all  treaties  prior  to 
1898  except  the  claims  treaty  of  1834.^  The  conduct  of 
Spain  as  to  this  treaty  was  highly  honorable.  By  this 
convention  it  had  obligated  itself  to  pay  perpetually  to 
certain  American  claimants  interest  semi-annually  on  an 
award  in  their  favor.  Although  at  the  outbreak  of  the 
war  Spain  had  issued  a  decree  that  all  agreements,  com- 
pacts, and  conventions  were  terminated  by  the  war,  in 
the  year  following  it  not  only  resumed  the  payment  of 
interest  but  paid  the  installments  which  had  fallen  due 
while  the  hostilities  were  in  progress.^ 

A  treaty  may  be  nullified  by  the  indirect  action  of 
Congress  through  the  enactment  of  legislation  which 
conflicts  with  its  provisions.  The  attorney-general  and 
the  Supreme  Court  have  held  that  an  act  of  Congress 
of  later  date  than  a  treaty,  although  in  violation  of  its 
terms,  must  be  obeyed  as  municipal  law  within  the 
country.^  It  does  not,  however,  release  the  United  States 
from  its  obligations  to  the  other  contracting  state,  and 
in  no  manner  affords  a  suf&cient  excuse  for  the  violation 

1  U.  S.  For.  Re].,  1903,  730. 

*  Columbia  Law  Review,  article  by  Prof.  J.  B.  Moore,  213. 
8  112  U.  S.  580  ;  124  U.  S.  190  ;  130  U.  S.  580,  599 ;  149  U.  S.  698, 
721. 


308  THE   PRACTICE   OF   DIPLOMACY 

of  a  treaty.  In  upholding  the  Scott  Chinese  Exclusion 
Act  of  1888  the  Supreme  Court  stated  that  the  remedy 
of  China  was  in  making  diplomatic  representations  to 
the  government  of  the  United  States  or  in  resorting 
to  such  measures  as,  in  its  judgment,  its  interests  and 
dignity  demanded. 

The  Scott  act  of  1888  was  a  deliberate  purpose  to 
abrogate  by  indirect  legislation  the  Chinese  immigra- 
tion treaty  of  1880.  Its  impropriety  was  aggravated  by 
the  fact  that  it  was  passed  while  a  treaty  dealing  with 
the  subject  was  pending  ratification.  It  was  denounced 
in  the  Senate  as  an  act  of  bad  faith  by  such  eminent 
senators  as  Evarts  and  Sherman.  It  was  passed  on  the 
eve  of  a  presidential  election,  and  its  excuse  is  to  be  found 
in  the  political  exigencies  of  the  campaign.  The  gov- 
ernment later  made  amends  for  its  conduct  by  the  pay- 
ment of  the  long-pending  claims  of  Chinese  laborers  and 
by  the  negotiation  of  the  treaty  of  1894,  which  recon- 
ciled the  differences  between  the  two  governments.^ 

In  1879  Congress  passed  a  bill  providing,  among 
other  things,  for  the  abrogation  of  articles  5  and  6  of 
the  treaty  with  China  of  1868.  President  Hayes  vetoed 
the  bill,  and,  in  doing  so,  said  it  was  not  competent  for 
Congress  to  modify  an  existing  treaty,  as  that  could  be 
done  only  by  the  treaty-making  power  under  the  Con- 
stitution. He  added  that  "  a  denunciation  of  a  part  of  a 
treaty,  not  made  separable  from  the  rest  by  the  terms  of 
the  treaty  itself,  is  a  denunciation  of  the  whole  treaty."^ 

There  is  still  another  method  by  which  it  is  possible 

J  U.  S.  For.  Rel.,  1890,  China  ;  130  U.  S.  Reports,  581  ;  185  ib.  220. 
*  7  Presidents'  Messages,  519. 


TERMINATION   OF  TREATIES  309 

to  defeat  or  render  ineffective  treaties  regularly  entered 
into  by  the  Executive  and  approved  by  the  Senate.  The 
question  has  been  much  discussed  in  and  out  of  Con- 
gress how  far  treaties  are  binding  upon  the  House  of 
Representatives  which  is  often  called  upon  to  legislate 
respecting  them.  It  has  been  seen  that  a  treaty  when 
approved  by  the  Senate  and  proclaimed  by  the  President 
becomes  by  the  Constitution  the  law  of  the  land ;  but  in 
many  cases  treaties  contain  provisions  requiring  the  pay- 
ment of  money,  sometimes  they  affect  the  revenue  laws, 
and  in  other  ways  call  for  legislation  by  Congress  to 
make  effective  certain  of  their  stipulations.  Is  the  House 
required  in  such  cases  to  surrender  the  exercise  of  its 
judgment  and  freedom  of  legislation  because  of  the 
action  of  the  treaty-making  power  ? 

In  no  instance  has  the  House  of  Representatives 
failed  to  pass  the  laws  necessary  to  carry  the  treaties  into 
effect,  except  in  respect  of  the  commercial  reciprocity 
treaty  with  Mexico  already  cited,  and  that  convention 
contained  a  clause  reserving  to  Congress  the  question  of 
the  enactment  of  the  required  legislation.  But  a  number 
of  times  the  power  of  the  treaty-making  branch  of  the 
government  to  bind  the  House  to  enact  specific  legisla- 
tion has  been  seriously  doubted.  The  question  first 
arose  when  the  House  was  called  upon  to  pass  the  meas- 
ures necessary  to  put  the  Jay  treaty  of  1794  with  Great 
Britain  into  operation,  and  it  was  then  discussed  at 
great  length  and  with  much  feeling  by  the  statesmen 
who  had  framed  and  put  the  federal  Constitution  into 
operation.  It  was  again  debated  when  the  commercial 
treaty  of  1815  with  Great  Britain  was  concluded.    At 


310  THE  PRACTICE  OF  DIPLOMACY 

other  times  the  question  was  raised  in  Congress,  par- 
ticularly when  the  House  was  called  upon  to  vote  the 
appropriation  for  the  cession  of  Alaska  as  required  by 
the  treaty  of  1867  with  Russia.^ 

Another  phase  of  the  same  question  arose  under  the 
treaty  of  1831  between  the  United  States  and  France, 
which  illustrates  the  embarrassment  which  might  be 
caused  by  a  refusal  of  the  House  of  Representatives 
to  pass  the  legislation  necessary  to  carry  a  treaty  into 
effect.  That  treaty  called  for  a  reduction  of  duties  on 
French  wines  imported  into  the  United  States,  and  the 
payment  by  France  of  25,000,000  francs  as  indemnity 
to  American  shipping  during  the  Napoleonic  wars. 
Congress  promptly  passed  the  law  for  the  reduction  of 
duties  on  French  wines,  but  the  French  Chambers 
neglected  to  make  the  appropriation  necessary  to  pay 
the  indemnity,  and  three  years  after  the  treaty  was 
signed  absolutely  refused  to  do  so  by  a  direct  vote. 

1  As  to  action  of  House  on  Jay  treaty,  1794,  Annals  of  Congress,  4th 
Cong.,  1st  Sess.  464  (Gallatin's  speech),  759,  760,  771,  772  (Madison's 
speech),  782, 1239  (Fisher  Ames'  speech),  1291  ;  1  Presidents'  Messages, 
194  ;  7  Hamilton's  Works,  118;  8  ib.  386,  389 ;  6  ib.  (J.  C.  Hamilton's 
ed.)  92  ;  7  Jefferson's  Writings,  38,  40, 67  ;  8  ib.  266  ;  13  Washington's 
Writings,  181  ;  2  Madison's  Works  (ed.  1865),  69,  73,  75,  89,  94,  99 ;  1 
Adams'  Gallatin,  156.  For  decisions  of  courts  as  to  treaties  in  force, 
2  Peters'  U.  S.  Rep.  313  ;  7  ib.  51,  89  ;  14  ib.  415  ;  124  U.  S.  Rep.  194. 
For  action  of  House  on  commercial  treaty  with  Great  Britain  of  1815, 
Annals  of  Congress,  14th  Cong.,  1816  ;  2  Wharton's  Digest,  19,  20.  For 
action  on  Alaska  treaty  of  1867,  6  Presidents'  Messages,  524 ;  House 
Journal,  40th  Cong.,  2d  Sess.  1064  ;  House  Report  4177,  49th  Cong.,  2d 
Sess.  ;  Congressional  Globe,  1867,  4031,  4059,  4092  ;  2  Wharton's  Di- 
gest, 21,  22.  For  views  of  jurists,  1  Kent's  Commentaries  (Lacy's  ed.  1889) 
284,  etc.  ;  Davis'  Outlines  of  Constitutional  Jurisp.,  Lecture  8 ;  1 
Calhoun's  Works  (Cralle's  ed.),  201,  etc.  ;  Dr.  E.  Meier,  Leipsic,  quoted 
in  2  Wheaton,  24. 


TERMINATION  OF  TREATIES  311 

This  led  to  the  breaking  off  of  diplomatic  relations,  but 
through  the  intervention  of  the  British  government 
the  appropriation  was  finally  made,  the  money  was  paid, 
and  diplomatic  relations  were  resumed.^ 

In  organizing  a  new  government  unlike  any  of  the 
systems  of  the  past,  and  in  shaping  the  new  system  by 
a  carefully  drawn  written  constitution,  wherein  the 
duties  and  functions  of  the  three  coordinate  branches 
of  government  were  sought  to  be  precisely  defined  and 
marked  out,  it  would  not  have  been  strange  if  the 
system  had  been  found  unworkable  in  some  of  its  fea- 
tures. True,  the  Constitution  has  been  put  to  severe 
tests,  but  it  is  a  high  testimony  to  the  wisdom  and 
patriotism  of  our  formative  statesmen  that  it  has  passed 
successfully  through  all  its  trials. 

The  division  of  powers  respecting  the  conduct  of  the 
delicate  matter  of  foreign  relations  was  sought  to  be 
carefully  marked  out.  In  the  next  chapter  we  shall  see 
that  the  line  of  demarkation  between  the  Executive  and 
the  Senate  is  not  so  distinctly  drawn  as  to  settle  all 
doubts.  So  also,  as  shown  above,  the  powers  and  duties 
of  the  House  of  Representatives  as  to  treaties  are  not 
so  clearly  set  forth  as  to  avoid  heated  controversy,  but 
it  is  to  the  credit  of  the  people's  direct  representatives 
to  be  able  to  say  that  in  this  respect  they  have  never 
failed  to  maintain  the  good  faith  and  honor  of  our 
country. 

»  3  Presidents'  Messages,  100,  188  ;  S.  Doc.  40,  23d  Cong.,  2d  Sess.  ; 
S.Doc.  1,  24th  Cong.,  1st  Sess. ;  S.  Doc.  62,  24th  Cong.,  1st  Sess. ;  House 
Ex.  Doc.  Ill,  24th  Cong,,  1st  Sess.  ;  3  Wharton's  Digest,  88-96. 


CHAPTER  XVI 

COMPACTS    OTHER    THAN    TREATIES 

There  are  various  ways  in  which  the  government  of 
the  United  States  may  enter  into  compacts  or  agree- 
ments of  a  binding  character,  other  than  by  means  of 
the  formal  treaties  I  have  described.  Most  of  these, 
however,  are  of  a  temporary  character,  and  in  large 
part  they  are  based  upon  the  legislative  authorization 
of  Congress  or  have  received  its  approval. 

A  question  which  has  been  much  discussed  in  recent 
years  is  how  far  the  Senate  of  the  United  States  can 
delegate  to  the  Executive  its  functions  as  a  part  of  the 
treaty-making  power,  and  to  what  extent  Congress  can 
confer  upon  the  President  legislative  duties.  Repeated 
instances  can  be  cited  where  legislation  has  conferred 
large  powers  upon  the  President  in  connection  with  our 
foreign  relations,  but  it  is  contended  that  in  none  of 
those  instances  can  it  be  said  that  Congress  has  trans- 
ferred to  him  legislative  powers,  or  that  the  Senate  has 
parted  from  or  delegated  to  the  Executive  its  functions 
as  a  branch  of  the  treaty-making  power. 

In  the  early  days  of  the  republic  when  many  of  the 
makers  of  the  Constitution  were  participating  in  legisla- 
tion. Congress  passed  laws  giving  to  the  President  large 
powers  respecting  foreign  commerce  and  tariff  regula- 
tions.  In  1794  he  was  empowered  to  "  levy  an  embargo 


COMPACTS  OTHER  THAN  TREATIES  313 

whenever,  in  his  opinion,  the  public  safety  shall  so  re- 
quire ...  on  all  ships  of  the  United  States  or  of  for- 
eign nations  in  the  ports  of  the  United  States;  "  ^  and  in 
1799  he  was  empowered  to  break  off  and  renew  commer- 
cial intercourse  with  France,  "  whenever,  in  his  opinion, 
the  interests  of  the  United  States  shall  require."  ^  Many 
acts  of  a  like  nature  have  been  passed  by  Congress,  the 
Canadian  retaliatory  act  of  1887  ^  being  still  in  force, 
which  confers  power  upon  the  President,  under  contin- 
gencies specified,  to  suspend,  in  his  discretion,  all  com- 
mercial intercourse  with  the  Dominion. 

By  the  act  of  June  8,  1872,  the  postmaster-general  is 
vested  with  power  to  make  postal  conventions,  with  the 
approval  of  the  President,  and  they  are  not  required 
to  be  submitted  to  the  Senate  for  ratification.  The 
United  States  has  more  than  forty  such  conventions. 
By  similar  authorizations  of  Congress  binding  agree- 
ments are  made  by  the  exchange  of  diplomatic  notes  as 
to  trade-marks,  copyrights,  wrecking  privileges,  commer- 
cial reciprocity,  and  other  matters. 

Of  this  class  of  legislation  Chief  Justice  Marshall  said  : 
"The  difference  between  the  departments  undoubtedly 
is  that  the  legislative  makes,  the  executive  executes,  and 
the  judiciary  construes  the  law;  but  the  maker  of  the 
law  may  commit  something  to  the  decision  of  the  other 
departments,  and  the  precise  boundary  of  this  power  is 
a  subject  of  delicate  and  difficult  inquiry,  into  which  a 
court  will  not  enter  unnecessarily."  ^  Of  the  same  nature 
as  the  acts  cited  was  the  provision  in  the  tariff  act  of 

1  1  Statutes  at  Large,  373.  ^  jb.,  615. 

3  24  St.  at  L.,  475.  *  10  Wheaton,  46. 


314  THE  PRACTICE  OF  DIPLOMACY 

October  1,  1890/  known  as  the  McKinley  law,  which 
gave  the  President  power  to  impose  certain  specified 
duties  upon  articles  named,  admitted  free  under  the  law, 
whenever  the  President  should  be  satisfied  that  any  for- 
eign nation  was  imposing  duties  on  American  products, 
which  he  should  deem  reciprocally  unequal  and  unreason- 
able. Under  that  law  the  President,  through  the  secre- 
tary of  state,  entered  into  negotiations  with  nearly  a 
score  of  foreign  governments,  and  made  with  several  of 
them  what  are  termed  "reciprocity  arrangements,"  which 
were  duly  proclaimed  in  the  same  manner  as  treaties ;  ^ 
and  in  the  cases  of  other  countries  where  the  negotiations 
failed  to  bring  about  an  agreement,  proclamations  were 
issued  imposing  duties  on  the  articles  named  imported 
from  those  countries.^  The  life  of  these  arrangements  was 
dependent  upon  the  maintenance  of  the  law,  and  as  the 
law  of  1890  was  repealed  by  that  of  1894,  they  came  to 
an  end.  Similar  legislation  was  enacted  in  the  revenue 
law  of  1897.^ 

The  act  upon  which  these  diplomatic  agreements  were 
based  is  probably  the  nearest  approach  to  a  delegation 
of  legislative  or  treaty-making  power,  and  its  constitu- 
tionality has  been  upheld  by  the  Supreme  Court  of  the 
United  States.  The  act  was  attacked  on  the  ground  that 
it  "delegated  to  the  President  both  legislative  and  treaty- 
making  powers."  In  its  decision  the  Court  said  :  "  That 
Congress  cannot  delegate  legislative  powers  to  the  Pre- 

1  26  Stat,  at  L.  612. 

^  For  agreement  with  Spain  for  Cuba  and  Porto  Rico,  see  27  St.  at  L, 
982. 

'  For  Proclamation  as  to  Venezuela,  see  27  St.  at  L.  1013. 

♦  U.  S.  Supl.  II,  702  ;  H.  Doc.  15,  67th  Cong.,  1st  Sess.  pt,  3,  958  ff. 


COMPACTS  OTHER  THAN  TREATIES  815 

sident  is  a  principle  universally  recognized  as  vital  to  the 
integrity  and  maintenance  of  the  system  of  government 
ordained  by  the  Constitution.  The  act  of  October  1, 
1890,  in  the  particular  under  consideration,  is  not  incon- 
sistent with  that  principle.  It  does  not,  in  any  real  sense, 
invest  the  President  with  the  power  of  legislation.  What 
the  President  was  required  to  do  was  simply  in  execution 
of  the  act  of  Congress."^  A  competent  writer  refers  to 
this  decision  as  "  one  in  which  the  Supreme  Court  has 
come  nearest  to  marking  the  boundary  within  which 
legislative  power  may  be  delegated."  ^ 

The  inquiry  has  been  made  whether  the  Senate,  in 
ratifying  The  Hague  convention  as  to  international 
arbitration,  parted  from  its  power  or  duty  further  to 
intervene  in  respect  to  cases  of  arbitration  which  may 
be  submitted  by  the  United  States,  in  accordance  with 
that  convention  ;  and  whether  the  President  alone,  with- 
out the  further  action  of  the  Senate,  is  empowered  to 
decide  all  questions  or  issues  which  may  be  submitted 
to  arbitration,  and  to  carry  the  arbitration  into  full  effect. 
The  learned  jurist  who  has  propounded  the  inquiry  says  : 
"  This  is  a  tremendous  power  for  a  republic  to  lodge  in 
one  man  s  hands."  ^ 

The  unratified  general  arbitration  convention  of  1897 
with  Great  Britain  contained  no  provision  for  a  sub- 
mission of  such  cases  as  would  be  embraced  in  the  treaty 
to  the  Senate ;  whereupon  that  body  amended  the  con- 
vention to  require  every  case  under  it   to  receive   its 

1  143  U.  S.  Reports,  650. 

'  Hon.  E.  B.  Whitney,  in  Columbia  Law  Review,  January,  1901. 

2  Prof.  S.  E,  Baldwin,  in  Yale  Review,  February,  1901. 


316  THE  PRACTICE  OF  DIPLOMACY 

approval.  The  various  arbitration  treaties  negotiated 
with  foreign  powers  in  1904  and  1905  contained  a  pro- 
vision that  in  submitting  each  case  to  The  Hague  Court 
"a  special  agreement"  should  be  made  defining  the 
matter  in  dispute,  the  powers  of  the  arbitrators,  and  the 
procedure.  A  question  was  raised  in  the  Senate  as  to 
the  scope  and  meaning  of  the  word  "agreement,"  and 
to  remove  all  doubt  on  the  subject,  it  amended  all  the 
treaties  by  substituting  in  its  place  the  word  "  treaty." 
The  effect  of  this  amendment  would  have  been  to  require 
every  case  to  be  passed  upon  by  the  Senate  before  sub- 
mission to  arbitration. 

The  President  has  sent  two  cases  to  The  Hajjue  Court 
under  the  general  arbitration  convention  of  1899  —  the 
Pious  Fund  case  under  a  protocol  with  Mexico  in  1902 
and  the  claims  of  American  citizens  against  Venezuela 
under  a  protocol  in  1903.  Neither  of  these  protocols 
was  submitted  to  the  Senate.^  Both  of  them,  however, 
were  confined  to  private  claims  of  American  citizens 
against  foreign  governments. 

There  is  a  class  of  executive  acts  of  a  diplomatic 
character  which  at  first  glance  would  seem  to  be  an 
independent  exercise  of  the  treaty-making  power,  but 
which  in  a  strict  sense  cannot  be  so  regarded.  Of  this 
class  are  agreements  for  the  adjustment  of  claims  of 
American  citizens  against  foreign  governments,  which 
are  often  made  by  the  secretary  of  state  without  any 
reference  of  the  agreements  to  the  Senate.  The  most 
noted  of  these  was  the  agreement  of  1871,  made  with 

1  U.  S.  For.  Rel.  1902,   738-786,   and  Appendix  2  ;   ib.  1903,  439- 
441. 


COMPACTS  OTHER  THAN  TREATIES  317 

Spain  for  the  adjustment  by  arbitration  of  the  claims 
of  American  citizens  arising  out  of  the  Cuban  insur- 
rection. The  agreement,  made  by  a  simple  exchange  of 
notes,  is  included  in  the  official  volume  of  treaties,^  but 
it  was  never  submitted  to  the  Senate  for  approval. 
Under  this  agreement  claims  to  the  amount  of  several 
millions  of  dollars  were  adjusted. 

A  number  of  other  agreements  of  a  similar  character 
have  been  made  by  successive  secretaries  of  state, 
whereby  specified  claims  of  Americans  have  been  sub- 
mitted to  arbitration.  The  practice  has  not  been  uni- 
form with  regard  to  sending  them  to  the  Senate. 
Sometimes  such  adjustments  have  taken  the  form  of 
conventions  which  were  submitted  to  the  Senate,  and 
in  other  cases  the  same  President  has  carried  out  the 
agreement  without  consulting  that  body.  In  the  latter 
case  he  proceeds  upon  the  accepted  theory  that  all 
claims  of  private  citizens  against  foreign  governments 
are  subject  to  political  exigencies,  and  it  is  within  the 
discretion  of  the  Executive  to  urge  them  diplomatically 
upon  the  foreign  government  or  not;  but  their  sub- 
mission is  usually  with  the  consent  of  the  claimant. 

No  case  has  yet  occurred  where  the  Executive  has 
entered  into  an  agreement  for  the  adjustment  by  arbi- 
tration of  the  private  claim  of  a  foreigner  against  the 
United  States  without  securing  the  approval  of  the 
Senate  in  the  form  of  a  convention.  One  reason  for 
this  may  be  that  the  Executive  cannot  bind  the  gov- 
ernment to  the  payment  of  money.  Protocols,  however, 
for  the  submission  of  claims  to  arbitration  have  been 

1  Treaties  of  the  United  States,  1025. 


318  THE  PRACTICE  OF  DIPLOMACY 

entered  into  by  the  United  States,  in  which  American 
citizens  alleged  indebtedness  growing  out  of  contracts 
with  foreign  governments  and  where  the  foreign  gov- 
ernments set  up  a  counter-claim  of  a  balance  in  their 
favor.  By  the  terms  of  submission  the  award  if  made 
against  the  American  citizens  was  to  be  against  them 
individually  and  not  against  the  government  of  the 
United  States/ 

Protocols  making  provision  for  an  armistice  in  time 
of  hostilities  are  regarded  as  a  proper  exercise  of  his 
war  powers  by  the  President.  Of  this  character  was  the 
protocol  of  August  12,  1898,  suspending  hostilities 
with  Spain,  and  providing  for  a  treaty  of  peace.'^ 

An  important  protocol  was  signed  in  1877,  while  an 
insurrection  in  Cuba  was  in  progress,  between  the 
American  minister  in  Madrid  and  the  Spanish  secretary 
for  foreign  affairs,  regulating  the  judicial  procedure  in 
Spanish  territory  as  regards  American  citizens,  and  this 
protocol  was  often  appealed  to  in  later  years.  This  was 
held  to  be  a  mere  executive  construction  of  existing 
treaties  and  laws,  and  imposed  no  new  obligation  upon 
either  government.^ 

Probably  the  broadest  exercise  of  executive  authority 
in  foreign  matters  without  the  concurrence  of  the  Senate 
was  the  protocol  entered  into  by  the  United  States  and 
ten  other  governments  with  China  in  1901  after  the 
Boxer  troubles,  by  which  the  various  questions  arising 

1  U.  S.  For.  Rel.  1897,  479;  ib.  1900,  656. 

2  For  text  of  Protocol,  S.  Ex.  Doc.  62,  pt.  1,  55th  Cong.,  3d  Sess.  282. 
«  U.  S.  Treaties,  1889,  1030  ;  U.  S.  For.  Rel.  1891,  Appendix;  for  list 

of  executive  agreements  see  Crandall's  Treaties,  86-88. 


'  COMPACTS   OTHER  THAN  TREATIES  319 

out  of  that  uprising  were  adjusted,  including  the  exac- 
tion from  China  of  an  indemnity  of  four  hundred  and 
fifty  millions  of  taels.  An  indirect  acquiescence,  how- 
ever, was  given  by  the  Senate  in  its  approval  of  the 
commercial  treaty  with  China  of  1903,  which  sets  forth 
in  its  preamble  that  it  is  made  in  accordance  with  one 
of  the  clauses  of  the  protocol  of  1901.  This  protocol 
was  unilateral  in  its  stipulations,  binding  only  the 
Chinese  government.  Had  it  been  otherwise,  doubtless 
it  would  have  been  submitted  to  the  Senate. 

A  case  is  cited  by  writers  on  the  powers  of  the 
Executive,  to  show  the  acquisition  of  territory  without 
the  participation  of  the  Senate.  For  the  sole  purpose  of 
protecting  navigation,  such  a  portion  of  what  is  known 
as  Horseshoe  Reef  in  Niagara  River  as  was  sufficient 
for  the  erection  of  a  lighthouse  was  ceded  by  Great 
Britain  to  the  United  States,  in  1850,  on  condition  that 
the  latter  would  erect  and  maintain  a  lighthouse  thereon, 
and  would  not  fortify  it.  The  cession  was  effected  by 
the  signing  of  a  protocol,  without  reference  to  the 
Senate,  and  Congress  made  the  necessary  appropriation 
to  carry  the  arrangement  into  effect.^  Such  a  case  could 
hardly  be  cited  as  a  precedent  to  justify  the  acquisition 
of  any  considerable  portion  of  habitable  territory  by 
executive  action  alone. 

A  reference  has  been  made  in  Chapters  XH  and  XV 
to  the  arrangement  of  1817  for  disarmament  on  the 
Great  Lakes,  effected  by  an  exchange  of  notes,  and 
the  ratification  of  which  was  advised  by  the  Senate  the 

1  U.  S.  Treaties,  1889,  444;  9  St.  at  L.  380,  627;  10  ib.  343;  S.  Doc. 
9,  50th  Cong.,  2d  Sess.  13. 


320  THE   PRACTICE  OF  DIPLOMACY 

next  year.  In  his  message  to  the  Senate,  President 
Monroe  said :  "^  I  submit  to  the  consideration  of  the 
Senate  whether  this  is  such  an  arrangement  as  the 
Executive  is  competent  to  enter  into  by  the  powers 
vested  in  it  by  the  Constitution,  or  is  such  a  one  as 
requires  the  advice  and  consent  of  the  Senate,  and,  in 
the  latter  case,  for  their  advice  and  consent,  should  it 
be  approved." 

The  official  records  do  not  show  why  the  President 
took  this  action,  but  it  appears  from  the  Diary  of  Secre- 
tary J.  Q.  Adams  that  Mr.  Bagot,  the  British  minister, 
raised  the  question  with  him  whether  or  not  the  ar- 
rangement should  receive  the  approval  of  the  Senate. 
President  Monroe  at  the  time  said  he  did  not  think  it 
necessary.  It  was  plainly  an  act  of  prudence,  if  not 
of  duty,  to  do  so,  as  the  arrangement  was  not  merely 
temporary,  but  has  continued  in  existence  to  this  day.^ 

The  Virginius  afFair  of  1874,  which  threatened  to 
provoke  hostilities  between  the  United  States  and  Spain, 
was  adjusted  by  two  executive  protocols,  signed  by  the 
secretary  of  state  and  the  Spanish  minister  in  Wash- 
ington, the  first  providing  for  the  surrender  of  the 
surviving  passengers  and  crew  and  the  vessel  by  Spain, 
and  a  salute  to  the  flag ;  and  the  second,  signed  by  the 
Spanish  minister  of  foreign  affairs  and  the  American 
minister  in  Madrid,  providing  an  indemnity  for  the 
Americans  killed.^ 

Another  executive  arrangement  for  the  prevention  of 

»  4  Am.  State  Papers,  For.  Rel.  202-207  ;  H.  Ex.  Doc.  471,  56th  Cong., 
Ist  Sess.  14  ;  4  J.  Q.  Adams,  Memoirs,  41,  84. 
2  U.  S.  For.  Rel.  1874,  987  ;  ib.  1875,  1220. 


COMPACTS  OTHER  THAN  TREATIES  321 

hostilities  was  that  entered  into  by  the  military  and 
naval  authorities  in  1860,  on  the  disputed  island  of  San 
Juan,  involved  in  the  controversy  over  the  water  bound- 
ary between  British  Columbia  and  the  United  States. 
It  was  agreed  by  them  that  the  island  should  be  garri- 
soned by  equal  military  forces  of  the  two  nations  to 
preserve  peace  and  order.  The  agreement  was  approved 
by  the  Department  of  State  and  the  British  lega- 
tion, and  remained  in  force  until  1873,  when  by  virtue 
of  the  arbitral  decision  of  the  Emperor  of  Germany 
undisputed  possession  was  delivered  to  the  United 
States.^ 

Of  a  similar  character  were  the  arrangements  for  the 
reciprocal  crossing  of  the  frontier  by  American  and 
Mexican  troops  in  pursuit  of  marauding  Indians.  When 
first  indulged  in  by  American  troops  without  the  con- 
sent of  Mexico,  it  brought  from  that  country  serious 
protests  of  a  violation  of  its  sovereignty.  Later,  with 
the  consent  of  the  Mexican  Senate,  agreements  were 
entered  into  for  reciprocal  crossing  of  the  frontier  in 
pursuit  of  depredating  Indians.  These  were  effected 
by  an  exchange  of  notes  or  by  protocol  between  the 
secretary  of  state  and  the  Mexican  minister,  and  in  such 
case  they  were  for  a  limited  duration.^ 

Congress,  by  what  is  known  as  the  Piatt  Amendment, 
in  the  act  of  March  2,  1901,  fixing  the  basis  of  the  re- 
lations to  exist  between  the  United  States  and  the  Re- 
public of  Cuba,  provided  that  the  latter  should  "  sell  or 
lease  to  the  United  States  lands  necessary  for  coaling  or 

1  S.  Ex.  Doc.  29,  40th  Cong.,  2(1  Sess. 

2  U.  S.  For.  Rel.  1874,  1878,  1881,  1882,  Mexico  ;  1896,  438. 


322  THE  PRACTICE  OF  DIPLOMACY 

naval  stations  at  certain  specified  points,  to  be  agreed 
upon  with  the  President  of  the  United  States."  On 
February  16,  1903,  the  Presidents  of  Cuba  and  of  the 
United  States  united  in  signing  an  agreement  in  which 
the  act  of  Congress  was  recited,  and  whereby  the  Re- 
public of  Cuba  leased  to  the  United  States  "  for  the 
time  required  for  the  purposes  of  coaling  and  naval 
stations,"  two  areas  of  land  and  water  set  forth  by 
metes  and  bounds  j  and  on  July  2  following  the  same 
Presidents  entered  into  another  agreement,  by  which 
the  United  States  stipulated  to  pay  annually  a  sum 
stated  as  rent  for  the  leased  areas ;  and  an  extradition 
provision  was  inserted  for  the  mutual  surrender  of  fugi- 
tives from  justice  to  or  from  such  areas.  The  two 
agreements  seem  to  be  a  broad  exercise,  on  the  part  of 
the  President  of  the  United  States,  of  the  authority 
conferred  by  the  act  of  Congress.^ 

The  Constitution  of  the  United  States,  Article  I,  Sec- 
tion 10,  Clause  3,  is  as  follows :  "  No  State  shall,  without 
the  consent  of  Congress,  lay  any  duty  of  tonnage,  keep 
troops,  or  ships  of  war  in  time  of  peace,  enter  into 
any  agreement  or  compact  with  another  State  or  with 
a  foreign  power."  This  provision  has  never  been  put 
in  operation  between  a  state  and  a  foreign  power,  and 
a  condition  of  affairs  can  hardly  arise  where  Congress 
would  deem  it  preferable  for  the  state  to  deal  with  such 
a  power  rather  than  the  federal  government. 

The  nearest  approach  to  such  an  agreement  is  found 
in  the  relations  between  the  State  of  Maine  and  the 
Province  of  New  Brunswick  in  1839.    The  excitement 

»  Rev.  St.  Supplement  II,   1604  ;  U.  S.  For.  Rel.  1903,  350  £E. 


COMPACTS  OTHER  THAN  TREATIES  323 

respecting  the  northeastern  boundary  had  reached  such 
a  pitch  that  a  border  war  was  threatened,  and  General 
Scott  was  sent  by  the  federal  government  to  act  as  paci- 
ficator and  to  preserve  order.  In  that  capacity  he  pro- 
posed to  the  governor  of  New  Brunswick  a  plan  for  a 
temporary  settlement,  assuring  the  latter  that  if  accepted 
by  him,  it  would  also  be  approved  by  the  authorities  of 
the  State  of  Maine.  The  plan  was  accepted  by  both  par- 
ties, but  the  correspondence  on  both  sides  was  through 
General  Scott,  and  no  joint  agreement  was  signed.^ 

The  regulation  of  fishing  in  the  Great  Lakes  has 
been  exercised  by  the  independent  action  of  the  adjoin- 
ing states  and  of  the  Dominion  of  Canada,  and  because 
of  the  want  of  any  concert  it  has  proved  very  unsatis- 
factory. It  has  been  suggested  that  a  remedy  might  be 
found  in  a  concert  of  action  or  agreement,  for  instance, 
between  the  State  of  New  York  and  the  Province  of 
Ontario.  But  no  such  agreement  could  become  oper- 
ative without  the  approval  of  Congress,  and  it  would 
be  far  better  that  the  regulation  of  fishing  in  such 
international  waters  should  be  through  a  treaty  be- 
tween the  United  States  and  Great  Britain,  respecting 
which  the  United  States  could  doubtless  exercise  treaty 
jurisdiction.^ 

Under  the  clause  of  the  Constitution  above  quoted, 
Congress  has  in  several  instances  confirmed  the  action 
of  state  legislatures  in  levying  tonnage  duties  in  their 
ports.  ^ 

1  H.  Doc.  169,  26th  Cong.,  1st  Sess.;  2  Memoirs  of  Gen.  Scott,  334-351. 

2  22  Op.  Atty.  Gen.  215. 

8  1  Statutes  at  Large,  184, 190  ;  2  ib.  18  ;  5  ib.  215. 


324  THE  PRACTICE  OF  DIPLOMACY 

The  Supreme  Court  has  held  that  the  authorities  of 
the  State  of  Vermont  could  not  surrender  a  fusfitive 
from  justice  to  the  Canadian  authorities,  because  that 
involved  an  agreement  between  a  state  and  a  foreign 
power,  without  the  assent  of  Congress/  But  in  the  ex- 
tradition treaty  with  Mexico  it  is  provided  that  in  case 
of  crimes  committed  in  the  frontier  states,  requisitions 
for  extradition  may  be  made  through  the  chief  civil 
authority  of  the  respective  state  or  territory.^ 

Other  executive  acts  of  a  diplomatic  character  are  trans- 
itory measures  which  take  the  name  of  modus  Vivendi. 
These  are  usually  made  pending  some  treaty  negotia- 
tions, they  are  temporary  expedients  to  avoid  friction 
or  trouble  until  a  permanent  settlement  of  the  questions 
in  controversy  is  reached,  and  are  made  by  the  secretary 
of  state  with  the  foreign  government  concerned.  They 
take  the  shape  of  an  exchange  of  notes  or  of  a  formal 
protocol,  and  ordinarily  are  not  submitted  to  the  Senate 
for  approval.  Of  this  character  was  the  modus  Vivendi 
arranged  by  the  commissioners  of  the  United  States  and 
Great  Britain  preceding  the  negotiations  and  pending 
the  ratification  of  the  convention  of  1888,  for  adjusting 
the  northeast  fisheries  with  Canada.^  Also,  a  modus 
Vivendi  was  arranged  with  Great  Britian,  pending  the 
negotiation  of  the  Bering  Sea  fur-seal  arbitration  treaty, 
providing  for  the  protectiom  of  the  seals  during  one 
season,  and  a  second  modus  was  agreed  upon  to  extend 
over  the  period  of  the  fur-seal  arbitration  at  Paris  in 

»  14  Peters,  540. 

2  Treaties  in  Force  (1904),  547. 

3  For.  Rel.  1885,460  £E.;  S.  Ex.  Doc.  113,  50th  Cong.,  1st  Sess.,  p.  124. 


COMPACTS  OTHER  THAN  TREATIES  325 

1893.  The  last  of  these  was  submitted  to  the  Senate, 
but  the  other  was  not  submitted  and  went  into  effect  by 
the  President 's  proclamation  alone.^  The  reason  for  this 
diverse  action  seems  to  have  been  that  the  first  embraced 
matters  purely  executive  in  character,  whereas  the  second 
undertook  to  bind  the  United  States  to  damages  as  a  pos- 
sible result  of  arbitration. 

Among  the  more  recent  instances  of  this  class  of 
executive  acts  is  the  modus  vivendi  of  1899,  made  by 
Secretary  Hay,  respecting  part  of  the  Alaskan  boundary. 
The  arrangement  was  effected  by  the  secretary  with 
the  British  charge  d'affaires  in  Washington,  pending 
the  settlement  of  the  much-debated  boundary  question 
by  the  joint  high  commission  to  which  the  subject  had 
been  referred  by  the  two  governments.  The  constant 
travel  and  traffic  with  the  Yukon  region  from  the  head 
of  the  Lynn  canal  made  some  temporary  arrangements 
for  customs  and  police  purposes  absolutely  necessary. 
The  arrangement  fixed  a  line  "  provisionally  .  .  .  without 
prejudice  to  the  claims  of  either  party  in  the  permanent 
adjustment  of  the  international  boundary."  ^  A  similar 
modus  vivendi,  as  to  the  same  boundary-line  on  the 
Stikine  River,  was  made  by  Secretary  Evarts  and  the 
British  minister  in  1878,  and  it  continued  in  force  up  to 
the  award  of  the  tribunal  in  London  in  1903.^  Neither 
of  these  agreements  went  to  the  Senate. 

The  last  of  this  class  of  agreements  to  be  noticed  is 
that  growing  out  of  the  treaty  negotiated  by  the  govern- 

»  U.  S.  For.  Rel.  1891,  570;  2  Fur  Seal  Arbitration,  etc.,  Appendix,  6. 

2  U.  S.  For.  Rel.  1899,   330. 

3  lb.  1878,  pp.  339,  346,  347. 


32G  THE  PRACTICE  OF  DIPLOMACY 

ment  of  tlie  United  States  with  the  republic  of  San 
Domingo  for  the  adjustment  and  payment  of  the  claims 
of  American  citizens  and  other  foreio^ners  asrainst  that 
republic.  The  treaty  was  submitted  to  the  Senate  for 
its  approval  during  the  Fifty-eighth  Congress,  but  the 
Senate  adjourned  without  any  definite  action  upon  it, 
and  its  further  consideration  was  deferred  to  the  next 
Congress. 

By  the  terms  of  the  treaty  the  collection  of  the  cus- 
toms revenues  of  San  Domingo  was  to  be  intrusted  to 
American  officials  appointed  by  the  President  of  the 
United  States,  and  a  specified  portion  of  these  revenues 
was  to  be  reserved  for  payment  to  the  foreign  creditors, 
after  their  claims  had  been  adjusted.  In  order  to  pre- 
serve the  statics  quo  and  to  secure  the  non-interference 
of  foreign  governments,  pending  the  action  of  the  Sen- 
ate, the  President  of  San  Domingo  proposed  to  intrust 
the  collection  of  its  revenues  to  an  of&cer  to  be  nomi- 
nated  by  the  President  of  the  United  States,  to  deposit 
in  a  bank  in  New  York  the  portion  which  would  be 
reserved  to  the  foreign  creditors  under  the  treaty,  and 
to  allow  the  deposit  to  await  final  action  on  the  treaty. 
The  President  of  the  United  States  made  the  nomina- 
tion requested,  and  protected  the  American  officer  and 
his  subordinates  in  their  duties  by  a  display  of  naval 
force. 

This  is  regarded  as  a  7nodus  vivendi,  although  it  has 
been  contended  that  it  lacks  an  element  of  such  an 
instrument,  in  that  it  is  unilateral  in  its  origin.  It  has 
also  been  charged  in  the  Senate  that  it  is  a  usurpation 
of  power  by  the  Executive  of  the  United  States.    How 


COMPACTS  OTHER  THAN  TREATIES      327 

far  the  President,  as  commander-in-chief  of  the  army 
and  navy,  may  go  in  maintaining  by  force  outside  of 
the  United  States  an  existing  situation  pending  action 
by  the  Senate,  is  a  debatable  question.  ^ 

Reference  has  been  made  to  the  question  raised  in 
the  Senate  in  the  discussion  of  the  arbitration  treaties 
of  1905,  as  to  the  word  "agreement,"  in  the  clause  pro- 
viding that  in  each  case  to  be  submitted  to  The  Hague 
Tribunal  the  contracting  parties  "  shall  conclude  a 
special  agreement  defining  clearly  the  matter  in  dis- 
pute,'"^ etc.  The  words,  "treaties,"  "agreement,"  and 
"  compact "  appear  in  the  Constitution  of  the  United 
States  in  connection  with  foreign  relations;  and  they 
have  been  discussed  by  the  Supreme  Court  and  by 
writers  on  the  Constitution,  but  that  discussion  does  not 
throw  much  light  upon  the  question  raised  in  the  Sen- 
ate over  the  arbitration  treaties.  ^  A  well-informed 
writer  states  the  issue  between  the  Senate  and  the 
President  as  follows  : 

"As  announced  in  the  press,  the  position  was  taken  by 
Senators  that  the  ^  special  agreement '  required  in  such 
case  must  be  in  the  form  of  a  treaty,  duly  submitted 
to  the  Senate  for  its  advice  and  consent.  The  President, 
on  the  other  hand,  took  the  ground  that  the  arbitration 
treaties,  if  approved  by  the  Senate  and  afterwards  rati- 
fied, would  in  themselves  constitute  complete  legislative 
acts,  which  it  would  be  within  his  powers  as  executive  to 

>■  Cong    Rec.  vol.  40,  no.  26,  1170  £f.,  January  17,  1906;  no.  34,  1576 
flf.,  January  26,  1906. 

2  For  text  of  Treaties,  U.  S.  For.  Rel.  1904,   9. 

3  14  Peters,  540,  670;  148  U.  S.  519  ;  153  U.  S.  163;  179  U.  S.  244 ; 
Story  on  the  Constitution,  sects.  1402,  1403. 


328  THE  PRACTICE  OF  DIPLOMACY 

carry  into  effect,  as  occasion  might  arise.  .  .  .  Those 
views  the  President  embodied  in  a  letter  to  Senator  Cnl- 
lom,  which  was  in  the  nature  of  a  protest  against  the 
position  which  Senators  were  understood  to  have  taken. 
On  receiving  this  letter,  the  Senate,  with  only  seven  dis- 
senting votes,  immediately  amended  the  treaties  by  strik- 
ing out  of  the  second  article  the  word  'agreement'  and 
substituting  for  it  the  word  '  treaty,'  so  that  it  would  be 
necessary  in  each  individual  case  before  proceeding  to 
arbitration  to  conclude  a  special  'treaty,'  defining  the 
matter  in  dispute  and  the  scope  of  the  arbitrators' 
powers  .  .  ."  ^  As  thus  amended,  the  President  declined 
to  carry  the  treaties  into  effect. 

In  taking  this  decisive  action  the  Senate  was  doubt- 
less influenced  by  two  considerations.  First,  that,  hav- 
ing been  made  by  the  Constitution  a  part  of  the  treaty- 
making  power,  it  ought  not  to  transfer  or  relinquish  this 
duty  wholly  to  the  Executive.  Second,  it  did  not  regard 
it  as  prudent  to  commit  to  one  person  the  power  of  de- 
ciding upon  the  propriety  of  submitting  to  arbitration 
the  important  questions  which  might  arise  under  these 
treaties.  By  their  terms  all  "  differences  which  may  arise 
of  a  legal  nature  or  relating  to  the  interpretation  of 
treaties  "  were  to  be  referred  to  The  Hague  Tribunal, 
provided  "they  do  not  affect  the  vital  interests,  the 
independence,  or  the  honor  "  of  the  nations  concerned. 
Here  is  a  broad  series  of  questions  embraced  in  this 
stipulation,  and  the  Senate  felt  that  it  would  be  unwise 

'  Treaties  and  Executive  Agreements,  by  Prof.  J.  B.  Moore,  Political 
Science  Quarterly,  Sept.,  1905.  The  same  article  contains  a  list  of  execu- 
tive agreements  made  without  the  Senate's  approval. 


COMPACTS  OTHER  THAN   TREATIES  329 

to  part  with  its  constitutional  duty  of  participating  in 
the  determination  of  whether  or  not  "they  affect  the 
vital  interests  "  of  the  country. 

I  have  thus  closed  my  examination  of  the  somewhat 
complex  and  multiform  subject  of  treaty-making  and 
treaty  observance,  as  it  has  relation  to  the  diplomacy  of 
the  United  States.  I  trust  it  has  shown  that  the  inter- 
ests of  our  country  have  been  well  guarded  by  those 
who  have  been  charged  with  the  delicate  and  responsible 
task  of  treaty  negotiations  with  foreign  powers.  It  must 
be  admitted,  however,  that  some  mistakes  have  been 
made,  and  the  government  has  not  been  entirely  without 
fault  in  the  observance  of  its  international  compacts. 
But  if  the  history  of  nations  for  the  first  century  and  a 
quarter  of  our  existence  is  examined,  it  will  be  found  that 
no  government  has  done  more  through  these  compacts 
to  elevate  the  standard  of  international  law,  and  that 
none  has  more  faithfully  and  conscientiously  observed 
its  treaty  obligations. 


CHAPTER   XVII 

ARBITRATION    AND    ITS    PROCEDURE 

Arbitration  as  a  means  of  settling  international  dis- 
putes is  by  no  means  a  modern  device.  Herodotus,  the 
father  of  history,  cites  instances  of  its  observance  in 
the  ancient  Persian  Empire.  With  the  Greek  states  it 
was  a  common  practice,  but  always  among  themselves, 
and  not  extended  by  them  to  other  nations.  Thucydi- 
des  refers  to  the  system  with  approval  and  cites  the 
words  of  the  King  of  Sparta :  "  It  is  impossible  to 
attack  as  a  transgressor  him  who  offers  to  lay  his 
grievance  before  a  tribunal  of  arbitration." 

The  dominating  spirit  of  Rome  could  not  tolerate 
the  practice  as  applied  to  itself,  even  in  the  days  of  the 
Republic,  and  propositions  for  arbitration  on  the  part 
of  other  nations  were  received  by  the  Senate  with  sov- 
ereign contempt.  It  did  not,  however,  refuse  to  act  as 
arbitrator  between  other  contending  nations,  and  in 
more  than  one  instance  settled  the  question  by  annex- 
ing the  territory  in  dispute  to  Rome,  conduct  which 
Cicero  felt  impelled  to  characterize  as  "  miserable  trick- 
ery." Soon  after  the  decay  of  the  Roman  Empire  there 
was  a  revival  of  the  practice  among  the  Franks  and 
Visigoths.  The  rising  power  of  the  popes  gave  them 
a  controlling  influence  in  the  international  affairs  of 
Christendom,  which  was  often  exercised  through  arbi- 


ARBITRATION  AND  ITS  PROCEDURE  331 

tration  of  the  controversies  of  nations.  One  of  the 
wisest  of  them,  Innocent  III,  declared  that  the  pope 
was  the  sovereign  mediator  on  earth,  that  peace  is  a 
duty  of  Christians,  and  that  the  head  of  the  Church 
ought  to  have  the  power  to  impose  it  upon  them.  It 
was  Pope  Alexander  VI  who,  in  arbitrating  the  differ- 
ences between  Spain  and  Portugal,  traced  the  celebrated 
imaginary  line  from  pole  to  pole,  dividing  between 
them  the  possession  of  aU  the  newly  discovered  coun- 
tries. 

The  German  emperors,  as  successors  of  the  Caesars, 
and  in  political  affairs  the  rivals  of  the  popes,  set  up  a 
claim  for  such  paramount  authority  as  to  enforce  their 
arbitration  on  other  nations,  but  their  pretension  was 
not  generally  accepted.  Other  influences  also  besides 
the  Church  or  political  preeminence  in  the  mediaeval 
period  controlled  in  the  matter  of  arbitration.  The  ex- 
alted character  of  a  sovereign  sometimes  led  contending 
princes  to  submit  their  differences  to  him;  for  instance, 
Louis  IX,  the  saintly  King  of  France,  owing  to  his 
great  wisdom  and  the  authority  of  his  character,  was 
often  called  to  act  the  part  of  conciliator  or  arbitrator. 
So  also  cities  sometimes  assumed  the  part  of  arbitrator, 
and  eminent  jurisconsults  were  called  upon,  as  the  pro- 
fessors of  the  Italian  universities.  That  the  practice 
was  recognized  as  a  wise  method  of  adjusting  disputed 
questions  is  manifest  from  the  fact  that  in  the  great 
congresses  or  conferences  of  Westphalia,  Ryswick,  and 
Utrecht  provision  was  made  for  the  reference  of  certain 
subjects  to  arbitration. 

As  the  power  of  the  papacy  began  to  wane  and  the 


332  THE   PRACTICE   OF  DIPLOMACY 

"warlike  nations  rose  in  importance  in  the  fifteenth  and 
sixteenth  centuries,  resort  to  arbitration  became  less 
frequent,  and  almost  disappeared  in  the  seventeenth 
century.  Rousseau  cynically  asked  how  disputes  in  that 
age  could  be  submitted  "  to  a  tribunal  of  men  who 
boasted  that  their  power  was  founded  exclusively  on  the 
sword,  and  who  bowed  down  to  God  only  because  he  is 
in  heaven."  But  toward  the  close  of  the  eighteenth 
century  the  nations  began  again  to  look  with  favor  on 
the  settlement  of  their  differences  by  an  appeal  to  reason, 
and  the  nineteenth  century  was  the  most  fruitful  in  the 
history  of  the  race  in  a  resort  to  arbitration ;  and  it  is 
our  proud  boast  that  our  own  country  stands  at  the  head 
of  the  list  of  the  nations  which  have  most  often  and  on 
the  most  important  questions  submitted  their  interna- 
tional disputes  to  this  peaceful  method  of  adjustment. 

The  United  States  early  adopted  the  practice.  In  one 
of  the  first  treaties  after  independence  was  secured,  that 
of  1794  with  England,  negotiated  with  a  view  to  avoid 
a  threatened  conflict,  provision  was  made  for  three  tri- 
bunals or  commissions  of  arbitration ;  and  our  next 
important  treaty,  that  with  Spain  of  1795,  likewise 
created  an  arbitration  commission.  The  practice  so 
early  adopted  has  been  faithfully  observed  throughout 
our  entire  history.  Our  government  has  been  a  party 
to  between  seventy  and  eighty  arbitrations  of  an  inter- 
national or  semi-international  character,  involving  twenty 
different  nations,  eleven  on  this  hemisphere  and  nine  on 
the  eastern,  including  the  most  powerful  and  the  weakest 
of  states.  As  one  result  of  this  policy,  the  United  States 
has  been  engaged  in  foreign  wars  less  than  five  years 


ARBITRATION  AND  ITS  PROCEDURE  333 

of  its  existence  as  an  independent  nation,  a  period  of 
over  one  hundred  and  twenty  years. 

The  country  with  which  we  have  most  often  resorted 
to  arbitration  is  the  one  with  which  we  have  had  the 
most  intimate,  the  most  irritating  and  perplexing  rela- 
tions; and  it  is  greatly  to  the  credit  of  both  the  United 
States  and  Great  Britain  that  for  the  last  three-quarters 
of  a  century  and  more  they  have  been  able  to  settle  all 
their  differences,  some  of  them  of  the  most  grave  and 
threatening  character,  by  the  peaceful  method  of  diplo- 
macy or  arbitration.  The  subject  most  fruitful  of  nego- 
tiation and  arbitration  between  them,  aside  from  claims, 
has  been  that  of  international  boundary  and  territory. 

The  first  question  of  this  class  grew  out  of  the  treaty 
of  peace  and  independence  of  1783.  In  fixing  the 
boundaries  between  the  United  States  and  Canada  the  St. 
Croix  River  was  named  in  the  treaty  as  both  the  eastern 
boundary  and  the  initial  point  of  the  northern  divisional 
line.  Very  soon  after  the  treaty  the  identification  of 
the  St.  Croix  River  became  a  matter  of  dispute.  Two 
considerable  rivers  emptied'into  Passamaquoddy  Bay,  one 
of  which  must  have  been  intended  as  the  boundary-line 
by  the  negotiators  of  the  treaty,  but  neither  of  them 
was  popularly  known  as  the  St.  Croix.  The  two  govern- 
ments not  having  been  able  to  agree  upon  the  subject, 
it  was  stipulated  in  the  Jay  treaty  of  1794  that  the 
question  of  what  was  the  St.  Croix  River  should  be 
submitted  to  the  arbitration  of  a  commission  consisting 
of  one  member  on  the  part  of  each  government  and  an 
umpire  chosen  by  these  two  commissioners.  It  is  an 
indication  of  the  spirit  of  conciliation  which  character- 


334  THE  PRACTICE  OF  DIPLOMACY 

ized  the  British  commissioner  that  he  agreed  to  the 
selection  of  an  American  citizen  as  umpire,  late  a  federal 
judge  and  a  prominent  lawyer  of  New  York.  The  com- 
mission was  enabled  to  render  a  unanimous  decision, 
which  was  accepted  by  both  governments.  An  interest- 
ing incident  of  this  arbitration,  already  noticed,  was 
that  the  two  surviving  negotiators  of  the  treaty  of  1783 
gave  their  testimony  as  witnesses.  John  Adams,  then 
President  of  the  United  States,  appeared  in  person  and 
responded  to  the  interrogatories  of  the  commission, 
and  John  Jay,  then  Chief  Justice  of  the  Supreme  Court, 
made  a  deposition. 

The  second  question,  in  order  of  time,  respecting  the 
boundary-line  submitted  to  arbitration,  related  to  the 
islands  in  and  adjoining  Passamaquoddy  Bay.  The 
uncertainty  as  to  these  also  grew  out  of  the  language 
of  the  treaty  of  1783.  By  the  provisions  of  the  treaty 
of  peace  of  1814  this  question  was  referred  to  two  com- 
missioners, one  on  the  part  of  each  government,  and  it 
was  provided  that  if  they  failed  to  agree  they  should 
report  to  the  respective  governments  the  points  of  dis- 
agreement and  the  grounds  thereof;  and  the  govern- 
ments agreed  to  refer  the  points  of  disagreement  to  the 
arbitration  of  some  friendly  power.  Happily  the  com- 
missioners were  able  to  unite  upon  a  joint  report  or 
decision,  which  was  accepted  by  both  governments. 

The  third  question  related  to  what  was  described  in 
the  treaty  of  1783  as  "the  northwest  angle  of  Nova 
Scotia"  and  the  line  along  the  highlands  between  the 
New  England  States  and  Canada.  This  proved  to  be 
one  of  the  most  irritating,  difi&cult,  and  tedious  of  all,  the 


ARBITRATION  AND  ITS  PROCEDURE  335 

subjects  of  dispute  between  the  United  States  and  Great 
Britain.  Diplomatic  efforts  to  reach  an  agreement  upon 
the  line  having  failed,  it  was  agreed  by  Article  V  of 
the  treaty  of  Ghent  that  the  subject  should  be  submit- 
ted to  two  commissioners  upon  the  same  conditions  as 
just  stated  respecting  the  determination  of  the  line 
among  the  islands  of  Passamaquoddy  Bay.  The  two 
commissioners  first  met  at  Portland,  Maine,  in  1816, 
and  held  various  other  sessions  at  different  points  in 
Canada  and  the  United  States  adjacent  to  the  region  in 
dispute.  They  also  caused  elaborate  surveys  of  the 
region  to  be  made  and  charted.  After  vain  efforts  to 
reach  an  agreement  they  adjourned  in  November,  1821, 
submitting  to  their  respective  governments  their  diverg- 
ent views. 

Under  the  terms  of  the  treaty  of  Ghent  the  matters  in 
dispute,  in  case  of  failure  by  the  commissioners  to  agree, 
were  to  be  submitted  to  the  arbitration  of  some  friendly 
power,  which  threw  the  subject  back  into  diplomacy  for 
the  naming  of  the  arbitrator  and  the  terms  of  the  arbi- 
tration. Six  years  elapsed  before  these  Avere  consum- 
mated, and  meanwhile  the  situation  was  further  aggra- 
vated by  acts  of  conflicting  authorities  in  the  disputed 
territory.  Finally  it  was  agreed  in  1827  that  the  matter 
should  be  referred  to  the  arbitrament  of  the  King  of 
the  Netherlands.  This  submission  has  two  features 
of  special  interest.  It  was  the  first  time  in  the  history  of 
the  United  States  that  the  treaty  of  submission  pre- 
scribed with  any  detail  the  procedure  to  be  observed 
by  both  parties ;  and  it  is  the  single  instance  in  our 
history  that  the  government  of  the  United  States  has 


336  THE  PRACTICE  OF  DIPLOMACY 

declined  to  carry  out  the  arbiter's  award.  It  was  pro- 
vided that  each  of  the  contracting  parties,  within  fifteen 
months  after  exchange  of  ratifications  of  the  treaty, 
should  prepare  a  statement  of  its  case,  which  should  be 
communicated  to  the  other,  and  that  within  twenty- 
one  months  after  ratifications  the  parties  should  have 
the  right  to  draw  up  a  second  and  definite  statement, 
to  be  likewise  mutually  exchanged.  These  are  what  are 
now  known  in  arbitration  as  "  the  case  "  and  "  counter- 
case."  It  was  likewise  provided  that,  within  nine 
months  after  ratifications,  each  party  should  communi- 
cate to  the  other  all  the  evidence  intended  to  be  adduced 
in  support  of  its  claim,  and  that  each  should,  on  appli- 
cation of  the  other,  furnish  authentic  copies  of  acts  of 
a  public  nature  intended  to  be  laid  as  evidence  before 
the  arbitrator,  issued  by  its  authority  or  in  its  exclusive 
possession.  The  cases,  counter-cases,  evidence,  docu- 
ments, and  maps  were  to  be  laid  before  the  arbitrator 
simultaneously  and  within  two  years  after  ratifications. 
He  was  authorized  to  call  for  further  elucidation  of  or 
evidence  on  any  specific  point ;  and  in  such  case  the 
other  party  was  to  be  permitted  to  reply  by  argument 
or  evidence. 

In  January,  1831,  the  King  of  the  Netherlands  ren- 
dered his  decision,  not  accepting  the  line  contended  for 
by  either  the  United  States  or  Great  Britain,  but  recom- 
mending a  compromise  boundary  or  a  line  of  conven- 
ience. The  American  minister  at  The  Hague,  without 
instructions  from  Washington,  felt  it  his  duty  to  file 
with  the  minister  for  foreign  affairs  a  protest  against  the 
decision  on  the  ground  that  it  was  a  departure  from  the 


ARBITRATION  AND  ITS  PROCEDURE  337 

powers  delegated  to  tlie  arbitrator.  He  stated  that  the 
question  where  the  boundary  should  run,  if  the  treaty 
of  1783  could  not  be  executed,  was  one  which  the 
United  States  would  submit  to  no  sovereign.  The  Brit- 
ish government  manifested  a  disposition  to  aquiesce  in 
the  award,  but  intimated  that  its  acceptance  would  not 
preclude  the  two  governments  from  modifying  the  line. 
It  is  stated  that  President  Jackson  was  at  first  inclined 
to  accept  the  award  and  that  he  afterwards  regretted 
that  he  did  not;  but  he  finally  submitted  the  question 
of  acceptance  to  the  Senate,  and  that  body  by  a  vote  of 
thirty-five  to  eight  advised  him  that  it  was  not  obliga- 
tory and  that  new  negotiations  should  be  opened.  The 
British  government  consented  to  reopen  diplomatic 
negotiations,  with  the  understanding  that  meanwhile 
the  boundaries  actually  possessed  should  be  observed  by 
the  authorities.  The  negotiations  dragged  along  through 
several  years  and  new  surveys  were  ordered;  but  it  was 
not  possible  for  the  people  on  the  border  to  observe  the 
temporary  boundary  understanding.  Strife  occurred,  a 
state  of  border  warfare  was  created,  Congress  author- 
ized the  President  to  call  out  the  militia,  and  voted  ten 
millions  of  dollars  for  public  defense.  General  Scott 
was  dispatched  to  the  frontier,  and  a  temporary  truce 
was  arranged.  In  1841  Mr.  Webster  became  secretary 
of  state.  He  was  well  acquainted  with  the  controversy, 
and  besides  was  a  statesman  of  the  highest  order  of 
talents.  Lord  Ashburton  was  sent  to  Washington  by 
the  British  government  as  a  special  minister  to  adjust 
this  long-pending  and  vexatious  question.  The  result  of 
their  negotiations  was  the  treaty  of  1842,  by  which  the 


338  THE  PRACTICE  OF  DIPLOMACY 

northeastern  boundary,  as  well  as  the  other  unsettled 
parts  of  the  boundary  east  of  the  Rocky  Mountains,  was 
definitely  agreed  upon  and  fixed.  Thus  were  questions 
which  had  three  times  failed  of  settlement  by  commis- 
sions or  arbitration  successfully  adjusted  by  diplomatic 
neofotiations. 

The  last  boundary  dispute  between  the  United  States 
and  Great  Britain  for  the  settlement  of  which  resort  was 
had  to  arbitration  was  that  of  the  water-line  separating 
the  possessions  of  the  two  countries  south  of  the  Van- 
couver island.  It  was  provided  in  the  Oregon  boundary 
treaty  of  1846  that  the  line  should  be  drawn  through 
"the  middle  of  the  channel  which  separates  the  con- 
tinent from  Vancouver's  island."  Soon  after  the  treaty 
was  proclaimed  a  question  arose  as  to  what  was  the 
middle  channel,  involving  the  possession  of  considerable 
island  territory.  Upon  a  failure  to  reach  a  settlement  by 
diplomacy,  the  joint  high  commission  of  1871  provided 
that  the  question  should  be  submitted  to  the  arbitration 
of  the  Emperor  of  Germany.  The  serious  character  of 
the  dispute  may  be  seen  in  the  statement  that  it  came 
near  to  causing  a  break-up  of  the  joint  high  commission. 
A  particular  feature  of  this  submission  was  that  the 
treaty  specifically  set  forth  the  claim  of  each  govern- 
ment to  the  line,  and  limited  the  power  of  the  arbitrator 
to  a  decision  as  to  which  was  the  correct  claim  under  the 
treaty  of  1846,  thus  preventing  the  award  of  a  compro- 
mise line.  The  experience  with  the  arbitration  of  the 
northeastern  boundary  by  the  King  of  the  Netherlands 
had  taught  our  government  the  importance,  in  a  sub- 
mission of  territorial  disputes,  of  making  most  precise 


ARBITRATION  AND  ITS  PROCEDURE  339 

the  question  to  be  arbitrated.  The  award  of  the  Em- 
peror was  in  favor  of  the  United  States. 

The  Alaskan  boundary  was  for  a  number  of  years  a 
matter  of  dispute  between  the  American  and  Canadian 
governments.  The  latter  expressed  a  willingness  to  sub- 
mit the  subject  to  arbitration,  but  in  view  of  the  fact 
that  the  United  States  had  been  in  uninterrupted  pos- 
session of  the  territory  in  controversy,  the  public  senti- 
ment of  the  country  would  not  permit  such  a  disposition 
of  the  question.  Finally  a  joint  tribunal  of  six  jurists, 
composed  of  three  citizens  or  subjects  from  each  country, 
was  agreed  upon  to  hear  and  determine  the  controversy 
by  a  majority  of  votes.  This  tribunal  met  in  London  in 
1903,  and  the  procedure  followed  was  similar  to  that  of 
arbitration  tribunals.  A  decision  was  reached  by  the 
action  of  the  Lord  Chief  Justice  of  England,  Baron 
Alverstone,  the  president  of  the  tribunal,  in  uniting 
with  the  American  members.^  The  plan  adopted  was 
that  suggested  in  the  unratified  treaty  of  1897,  to  which 
reference  will  be  made  later. 

In  addition  to  the  adjustment  of  boundary  disputes 
the  United  States  has  had  frequent  occasion  to  resort 
to  arbitration  with  Great  Britain  respecting  a  variety 
of  subjects,  such  as  the  determination  of  claims  arising 
out  of  the  violation  of  neutral  rights,  the  impediments 
interposed  by  the  local  authorities  of  the  United  States 
to  the  recovery  of  debts  existing  at  the  time  of  the 
revolutionary  war,  indemnity  for  slaves  carried  off  by 
the  British  army,  as  to  the  value  of  fishery  privileges, 
claims  arising  out  of  the    Oregon  treaty,  and  claims 

^  The  Alaskan  Boundary  Tribunal,  Washington,  1904. 


340  THE  PRACTICE  OF  DIPLOMACY 

growing  out  of  our  civil  war  or  of  a  general  nature. 
These  do  not  call  for  special  comment,  and  details  of 
their  character  may  be  learned  by  a  reference  to  the 
volume  of  treaties,  but  there  yet  remain  two  arbitra- 
tions with  the  mother  country  of  such  importance  and 
significance  as  to  require  more  than  a  passing  notice. 
I  refer  to  what  are  known  as  the  Geneva  and  the  Fur 
Seal  international  tribunals. 

The  most  important  arbitration  in  which  the  United 
States  ever  engaged,  and  probably  the  most  august  and 
impressive  ever  held  in  the  world  in  its  influence  on  the 
nations,  was  that  arising  out  of  the  conduct  of  Great 
Britain  during  our  civil  war.  In  a  previous  volume  I 
have  referred  to  its  historical  and  political  aspects  and 
I  shall  now  confine  myself  to  such  features  of  it  as 
relate  to  the  special  topic  in  hand.  The  treaty  of  1871 
which  created  it  was  framed  by  a  joint  high  commis- 
sion composed  of  the  most  distinguished  statesmen  and 
lawyers  of  the  two  countries,  and  its  provisions  as  to 
the  method  of  procedure  have  served  as  a  guide  for  all 
subsequent  tribunals  of  a  similar  character  representing 
the  two  governments.  The  question  of  difference  to  be 
arbitrated  grew  out  of  acts  committed  by  several  vessels 
which  were  allowed  to  be  built,  fitted  out,  and  to  depart 
from  British  ports  and  which  preyed  upon  American 
merchant  vessels,  originating  what  are  known  as  the 
"  Alabama  Claims."  The  United  States  contended  that 
the  British  government  was  responsible  for  all  damages 
resulting  from  the  acts  of  those  vessels,  because  of  its 
failure  to  discharge  its  duties  as  a  neutral  nation,  because 
it  allowed  the  vessels  so  fitted  out  to  depart  from  its 


AKBITRATION  AND  ITS  PROCEDURE  341 

ports,  and  because  of  the  privileges  afterward  extended 
to  them  in  British  waters. 

The  treaty  created  a  tribunal  composed  of  one  Ameri- 
can, one  British,  and  three  neutral  members,  the  latter 
to  be  named  one  each  by  the  King  of  Italy,  the  Presi- 
dent of  Switzerland,  and  the  Emperor  of  Brazil ;  the 
city  of  Geneva  was  fixed  upon  as  the  place  where  the 
tribunal  should  hold  its  sessions ;  its  decisions  were  to 
be  made  by  a  majority ;  and  each  government  was  to  be 
represented  by  an  agent.  Mr.  Charles  Francis  Adams, 
our  minister  in  London,  was  the  American  arbitrator, 
Bancroft  Davis  the  agent,  and  Caleb  Cushing,  William 
M.  Evarts,  and  Morrison  E.  Waite,  afterwards  Chief 
Justice  of  the  Supreme  Court  of  the  United  States,  the 
counsel  of  the  United  States. 

The  case  of  each  of  the  two  parties,  accompanied  by 
the  documents  and  evidence  on  which  each  relied,  was 
to  be  delivered  to  the  arbitrators  and  opposing  agent 
within  six  months  after  the  exchange  of  ratifications  of 
the  treaty.  Within  four  months  after  the  delivery  of 
the  case,  the  counter-case  on  each  side  was  to  be  like- 
wise delivered ;  but  the  arbitrators  were  given  the  power 
to  extend  the  time  for  delivery  of  the  counter-case  for 
good  cause  shown.  If  either  party  specified  any  docu- 
ment in  its  own  exclusive  possession  without  annexing 
a  copy,  the  other  party  could  require  a  copy  to  be  fur- 
nished ;  and  either  party  had  the  right  to  call  for  the 
originals  or  certified  copies  of  all  papers  adduced  as 
evidence.  And,  finally,  both  parties  were  to  deliver, 
within  two  months  after  delivery  of  the  counter-case, 
written  or  printed  argument ;  and  the  arbitrators,  if  they 


342  THE   PRACTICE  OF  DIPLOMACY 

desired  elucidation  of  any  point,  could  require  a  printed 
statement  or  argument,  or  oral  argument  by  counsel,  to 
which  the  other  party  had  the  right  to  make  a  reply. 
The  award  of  the  tribunal  was  to  be  rendered  within 
three  months  from  the  close  of  the  argument,  if  pos- 
sible. 

The  treaty  prescribed  for  the  government  of  the 
tribunal  three  rules  as  to  neutrality,  which  were  to  be 
made  applicable  to  the  case,  together  with  such  princi- 
ples of  international  law  as  were  not  inconsistent  with 
them.  This  was  a  new  departure  in  international  prac- 
tice, and  is  believed  to  have  largely  contributed  to  the 
success  of  the  American  case. 

The  cases  were  duly  exchanged,  and  when  the  Amer- 
ican case  became  known  to  the  public  it  created  intense 
excitement  and  indignation  in  Great  Britain,  because  of 
the  character  of  its  demands,  which  were  as  follows : 

*'  1.  Claims  for  direct  losses  growing  out  of  the  de- 
struction of  vessels  and  their  cargoes  by  the  insurgent 
cruisers ; 

"  2.  The  national  expenditures  in  pursuit  of  these 
cruisers ; 

*'  3.  The  loss  in  the  transfer  of  the  American  com- 
mercial marine  to  the  British  flag ; 

"  4.  The  enhanced  payments  of  insurance ; 

"  5.  The  prolongation  of  the  war  and  the  addition 
of  a  large  sum  to  the  cost  of  the  war  and  the  suppres- 
sion of  the  rebellion." 

Such  claims,  if  allowed,  would  reach  a  sum  so  enor- 
mous as  to  threaten  the  bankruptcy  of  even  the  British 
treasury.   The  Queen's  speech  to  Parliament  stated  that 


ARBITRATION  AND  ITS  PROCEDURE  343 

"  in  the  case  ...  of  the  United  States,  large  claims 
have  been  included  which  are  understood  on  my  part 
not  to  be  within  the  province  of  the  arbitrators."  On 
the  part  of  the  government  of  the  United  States  it  was 
held  that  under  the  treaty  it  had  a  right  to  have  the 
claims  enumerated  under  the  last  four  clauses,  known  as 
"indirect  claims,"  passed  upon  by  the  tribunal.  The 
British  negotiators  of  the  treaty  declared  it  was  their 
understanding  that  the  "  indirect  claims "  were  to  be 
excluded,  although  they  did  not  maintain  that  they  had 
any  specific  agreement  to  that  effect ;  and  the  American 
negotiators  held  a  different  view.  It  was  clearly  a  case 
of  honest  misapprehension.* 

The  British  government  gave  it  to  be  understood  that 
it  would  not  consent  to  allow  the  arbitration  to  proceed 
until  the  American  claim  for  indirect  damages  was 
withdrawn,  and  the  American  agent  insisted  upon  the 
right  to  have  the  claim  passed  upon  by  the  tribunal. 
For  a  time  it  seemed  as  if  the  arbitration  was  destined 
to  miscarry,  but  the  tribunal  itself  relieved  the  situation 
by  making  known  that  it  would  rule  out  and  disallow 
the  last  four  classes  of  claims  contained  in  the  American 
case;  and  thereupon  the  proceedings  of  the  tribunal 
were  resumed. 

When  it  was  about  to  enter  upon  a  consideration  of 
the  case,  the  British  agent  asked  that  counsel  of  his 
government  be  permitted  to  present  further  argument 
on  certain  points  in  reply  to  the  printed  argument  of 
the  United  States.  No  provision  had  been  made  for 
such  a  case  in  the  treaty,  nor  for  oral  argument,  and  the 

'  Mr.  Fish  and  the  Alabama  Claims,  Davis,  90  S. 


344  THE  PRACTICE  OF  DIPLOMACY 

tribunal  decided  not  to  admit  the  proposed  argument. 
Thereupon  the  British  arbitrator,  seeking  to  take  ad- 
vantage of  the  provision  of  the  treaty  authorizing  the 
tribunal  to  call  for  argument  on  any  special  point,  pro- 
posed to  the  tribunal  to  ask  for  printed  or  oral  argu- 
ment on  eight  groups  of  questions,  which  would  have 
been  virtually  a  reopening  of  the  whole  question.  The 
tribunal  declined  to  adopt  the  proposal ;  but  did  ask  for 
special  argument  on  certain  points,  which  was  made 
orally  by  the  leading  counsel  on  each  side  and  by 
printed  arguments  by  associate  counsel. 

The  decision  reached  by  the  tribunal  was  that  as  to 
certain  vessels  the  British  government  had  failed  in  its 
duty  as  a  neutral  power,  and  that  as  to  other  vessels  it 
had  not  been  negligent ;  and  an  award  of  damages  in 
the  lump  sum  of  $15,500,000  was  rendered  in  favor 
of  the  United  States.  The  British  arbitrator  refused  to 
sign  the  award,  but  asked  leave  to  file  his  dissenting 
opinion  later,  which  was  done  ten  days  after  the  adjourn- 
ment of  the  tribunal.  Portions  of  it  were  couched  in 
offensive  language,  and  Mr.  Fish,  secretary  of  state, 
declared  that  if  the  agent  of  the  United  States  had  had 
an  opportunity  to  become  acquainted  with  its  contents 
he  would  have  objected  to  its  reception  and  that  the 
tribunal  probably  would  not  have  officially  received  it. 

The  result  caused  a  temporary  feeling  of  disappoint- 
ment in  Great  Britain,  but  it  removed  a  source  of  great 
irritation,  restored  the  two  nations  to  friendly  relations, 
and  was  a  conspicuous  testimony  to  the  value  of  inter- 
national arbitration. 

Next  in  importance  to  the  Geneva  arbitration  was 


ARBITRATION  AND  ITS  PROCEDURE  345 

that  relating  to  the  protection  of  the  fur  seals  in  Bering 
Sea  held  in  Paris  in  1893.  The  question  there  consid- 
ered arose  out  of  the  effort  on  the  part  of  the  govern- 
ment of  the  United  States  to  protect  the  seals  on  the 
high  seas,  while  absent  from  the  islands  which  they 
made  their  home,  in  quest  of  food  or  on  their  annual 
migration.  Durins:  the  entire  time  of  the  Russian  occu- 
pation  and  for  a  number  of  years  after  the  cession  to 
the  United  States,  the  killing  of  the  seals  for  their 
skins  was  confined  to  the  males  while  on  the  islands, 
under  careful  government  inspection  and  on  the  pay- 
ment of  a  royalty  which  yielded  a  large  sum  annually 
to  the  treasury.  Between  fifteen  and  eighteen  years 
after  the  seal  islands  came  into  the  possession  of  the 
United  States  Canadian  vessels  began  to  engage  in  the 
business  of  killing  the  seals  in  the  water  on  the  high 
seas.  This  killing  was  necessarily  indiscriminate  and 
wasteful,  as  the  sex  could  not  be  determined  and  the 
bodies  of  many  that  were  killed  were  not  secured.  The 
contention  of  the  United  States  was  that  this  practice 
tended  to  the  extermination  of  this  herd  of  animals, 
useful  to  mankind  and  a  source  of  profit  to  the  govern- 
ment of  the  United  States.  It  was  claimed  that  as  Rus- 
sia had  exercised  authority  on  the  high  seas  to  prevent 
the  killing  of  seals  in  the  water,  it  was  competent  for 
the  United  States  to  pass  and  enforce  laws  prohibiting 
the  practice  in  that  part  of  Bering  Sea  included  in  the 
limits  of  the  cession  from  Russia. 

Operating  under  these  laws,  in  the  administration 
of  President  Cleveland  in  1886  and  1887,  a  number  of 
Canadian   sealing  vessels  were  seized,  some  of   which 


346  THE  PRACTICE  OF  DIPLOMACY 

were  condemned  in  the  United  States  Court  at  Sitka; 
and  in  1888  under  the  Harrison  administration  other 
seizures  took  place.  These  were  met  in  1887  by  vigor- 
ous protests  from  the  British  government  and  large 
claims  for  damages  were  presented.  A  long  diplomatic 
correspondence  ensued,  in  which  the  seizures  were 
sought  to  be  justified  by  Secretary  Blaine  for  the  rea- 
sons above  stated,  and  also  on  the  ground  that  the 
government  of  the  United  States  had  such  a  property 
in  the  seals  and  interest  in  the  industry  of  taking  the 
skins,  as  gave  it  the  right  to  follow  them  on  the  high 
seas  with  its  protection  while  absent  from  their  island 
home.  All  these  positions  were  strongly  contested  by 
Great  Britain,  and  on  the  failure  to  reach  an  agreement 
through  ordinary  diplomatic  channels,  the  questions 
involved  and  the  responsibility  for  damages  were  sub- 
mitted to  friendly  arbitration. 

The  treaty  provisions  for  the  constitution  of  the 
tribunal  and  its  procedure  were  very  similar  to  those  of 
the  Geneva  tribunal.  The  chief  points  of  variance  were 
as  follows :  Each  of  the  contracting  parties  was  to  be 
represented  by  two  members  of  the  court,  which,  with 
the  three  neutral  arbitrators  from  France,  Italy,  and 
Sweden,  constituted  a  tribunal  of  seven  members.  The 
arbitrators  were  to  be  "  jurists  of  distinguished  reputa- 
tion in  their  respective  countries;  and  the  selecting 
powers  [were]  requested  to  choose,  if  possible,  jurists 
who  are  acquainted  with  the  English  language."  In 
addition  to  the  printed  argument,  each  party  had  the 
right  to  "  support  the  same  before  the  arbitrators  by 
oral  argument  of  counsel ; "  and  under  this  provision 


ARBITRATION  AND  ITS  PROCEDURE  347 

the  tribunal  was  in  session  from  April  4  to  July  8, 
mainly  engaged  in  hearing  oral  arguments. 

The  decision  of  the  arbitrators  was  against  the  claim 
of  the  United  States  to  exercise  jurisdiction  on  the  high 
seas,  the  American  members  dissenting.  But  under 
a  provision  of  the  treaty  of  submission,  the  tribunal 
decided  that  international  regulations  should  be  adopted 
and  observed  by  the  two  governments  for  the  taking  of 
the  animals  on  the  high  seas  "  for  the  proper  protection 
and  preservation  of  the  fur  seals ; "  and  it  framed  regu- 
lations to  that  end,  embracing  a  protected  zone  around 
the  islands  in  Bering  Sea,  a  closed  season,  and  certain 
restrictions  as  to  weapons,  vessels,  etc.  These  regula- 
tions were  adopted  by  the  vote  of  one  British  and  the 
three  neutral  arbitrators,  the  two  Americans  and  the 
British-Canadian  member  dissenting.  It  was  the  intent 
of  the  tribunal  to  frame  such  regulations  as  would  pro- 
tect and  preserve  the  herd,  but  in  practice  they  have 
proved  inadequate  for  the  purpose. 

The  effect  of  the  award  was  to  leave  the  United 
States  responsible  in  damages  for  the  seizure  of  the 
Canadian  vessels,  and  in  1896  a  commission  of  one 
American  and  one  Canadian  judge  was  appointed  to 
determine  and  assess  the  amount,  which  they  found 
to  be  in  the  aggregate  $473,151,  which  sum  was  paid 
by  the  government  of  the  United  States  to  the  British 
government,  and  by  the  latter  distributed  to  the  indi- 
vidual claimants.  The  Paris  award  was  so  much  less 
satisfactory  to  the  United  States  than  that  of  Geneva, 
that  the  first  impression  created  by  it  was  unfavorable 
to  international  arbitration,  but  the  better  judgment  of 


348  THE  PRACTICE  OF  DIPLOMACY 

the  country  is  that  it  was  a  wiser  settlement  of  the 
questions  at  issue  than  to  push  them  to  the  extreme  of 
war. 

With  other  nations  than  Great  Britain  the  United 
States  has  had,  as  already  noted,  frequent  resort  to 
arbitration,  although  the  cases  have  mainly  related  to 
claims  for  pecuniary  damages  and  have  not  involved 
any  great  principles  of  public  policy.  I  do  not  deem  it 
necessary  to  enter  upon  a  detailed  statement  of  these, 
as  they  have  all  been  collated  by  Professor  John  Bassett 
Moore  in  six  large  volumes  and  published  by  the  gov- 
ernment.^ In  the  succeeding  chapter  on  International 
Claims  some  of  the  cases  which  have  been  found  irregu- 
lar or  fraudulent  are  reviewed. 

A  study  of  the  various  cases  of  arbitration  in  which 
the  United  States  has  been  a  party  will  develop  a  great 
variety  of  questions  of  law  and  practice.  They  relate,  in 
part,  to  the  constitution  or  personnel  of  the  tribunal, 
to  its  procedure,  and  to  the  power  of  the  arbitrators  to 
determine  their  own  jurisdiction.  In  the  arbitration  of 
claims  a  still  broader  field  of  inquiry  is  opened  up,  such 
as  the  authority  for  and  manner  of  presenting  them,  the 
nationality  or  citizenship  of  the  claimant,  the  domicile, 
the  forfeiture  of  national  protection,  who  are  "  author- 
ities," what  constitutes  a  denial  of  justice,  what  are 
forced  loans,  how  far  cases  of  voluntary  contract  are 
cognizable,  responsibility  for  damages  to  private  pro- 

*  History  and  Digest  of  International  Arbitrations  to  which  the  United 
States  has  been  a  Party,  by  John  Bassett  Moore,  Washington,  1898.  In 
the  preceding  pages  of  this  chapter  citation  of  authorities  has  been 
omitted,  as  they  will  be  found  in  Moore's  History  and  Digest. 


ARBITRATION  AND  ITS  PROCEDURE  349 

perty  by  war,  the  measure  of  damages,  whether  or  not 
interest  should  be  allowed,  the  rules  as  to  contraband 
and  blockade,  the  practice  of  prize  courts,  and  many 
other  questions.  The  various  tribunals  or  commissions 
have  by  no  means  been  uniform  in  the  rules  laid  down 
on  these  subjects,  and  yet,  notwithstanding  the  conflict 
of  decisions,  a  system  of  general  principles  and  practice 
may  be  evolved  which  will  prove  useful  in  future  arbi- 
trations. 

The  President  of  the  United  States  has  been  invited 
a  number  of  times  by  foreign  nations  to  act  as  a  sole 
arbitrator  in  questions  between  them  which  it  was  not 
possible  to  adjust  by  diplomatic  arrangement.  And 
likewise  American  ministers  resident  in  foreign  capitals 
have  been  intrusted  with  similar  duties. 

A  method  of  adjusting  international  disputes  akin  to 
arbitration  is  that  of  mediation.  It  is  usually  an  unso- 
licited offer  of  intervention  by  a  neutral  power  in  a  dis- 
pute to  prevent  war  or  in  a  flagrant  war  to  bring  about 
peace.  If  accepted  by  the  contending  nations,  the  me- 
diating power  has  no  judicial  functions,  as  in  arbitra- 
tion, but  its  action  is  merely  recommendatory,  and  has 
no  bindino^  force  on  either  of  the  contestants.  The 
motives  of  the  mediator  must  be  above  suspicion,  as 
otherwise  his  intervention  is  quite  certain  to  be  rejected. 
During  our  civil  war  Napoleon  III  sought  to  mediate  in 
the  contest,  but  Secretary  Seward,  convinced  that  he 
thereby  desired  to  bring  about  the  independence  of  the 
Southern  Confederacy,  refused  to  Hsten  to  or  examine 
his  proposal.  One  of  the  instances  in  which  the  United 
States  has  acted  the  part  of  a  mediator  was  in  1871,  in 


350  THE  PRACTICE  OF  DIPLOMACY 

the  war  carried  on  by  Spain  against  the  republics  of 
Chile,  Peru,  Ecuador,  and  BoHvia,  in  which  its  good 
offices  were  accepted,  and  an  armistice  was  agreed  to, 
which  after  considerable  delay  eventuated  in  a  treaty  of 
peace.  The  American  ministers  at  Buenos  Aires  and 
Santiago  were  likewise  successful  in  1881,  in  mediation 
between  Argentina  and  Chile  respecting  the  boundary. 
During  the  war  between  Chile  and  Peru  in  1881  Secre- 
tary Blaine  sent  two  special  envoys  to  South  America 
on  a  mission  of  peace,  but  they  were  unsuccessful  in 
their  efforts. 

Various  projects  have  been  advanced  for  a  general 
and  permanent  plan  of  arbitration  to  be  adopted  by  the 
civilized  nations  of  the  earth.  In  the  seventeenth  century 
Henry  IV  of  France  promulgated  the  idea,  and  it  was 
advocated  by  William  Penn.  In  the  past  fifty  years  it 
has  been  often  discussed.  It  has,  however,  encountered 
much  opposition,  and  even  its  ardent  friends  recognize 
that  it  is  subject  to  serious  difficulties  in  its  practical 
operation.  One  of  the  objections  is  that  any  fixed  plan 
of  general  arbitration  tends  to  weaken  diplomatic  settle- 
ment. In  the  international  relations  of  states  even  at 
the  present  day  ten  times  as  many  disputes  are  adjusted 
by  diplomatic  negotiations  as  are  referred  to  arbitration. 
The  fear  is  expressed  that  a  general  agreement  of 
nations  to  arbitrate  their  irreconcilable  differences  would 
in  large  measure  destroy  the  efficiency  of  diplomatic 
settlement.  Arbitration  is  a  surrender  of  sovereignty, 
and  it  is  a  serious  matter  for  a  nation  to  part  from  the 
control  of  a  whole  class  of  questions.  It  is  contended 
that  certain  subjects,  such  as  the  honor  of  a  nation. 


ARBITRATION  AND  ITS  PROCEDURE  351 

its  policy,  and  possibly  territorial  questions,  cannot  be 
committed  to  the  adjudication  of  a  tribunal.  When 
the  attempt  is  made  to  arrange  the  class  of  cases  to  be 
submitted  for  arbitration,  great  difficulty  in  agreement 
is  encountered. 

The  composition  of  the  tribunal  is  not  easy.  It  has 
usually  been  the  practice  to  include  in  it  a  member  from 
each  of  the  arbitrating  nations,  but  they  almost  invari- 
ably become  advocates  rather  than  judges.  The  pro- 
pensity to  follow  partisan  predilections  is  illustrated  by 
the  electoral  joint  commission  organized  to  settle  the 
Hayes-Tilden  presidential  contest,  when  every  one  of 
the  fifteen  members  voted  in  accord  with  his  party 
attachment. 

It  has  been  found  much  easier  for  nations  to  lay 
down  a  rule  than  to  follow  it.  The  Great  Powers  at  the 
Paris  Conference  of  1856  resolved  thereafter  to  resort 
to  mediation  for  the  settlement  of  their  disputes,  but 
since  then  they  have  resorted  to  war  more  often  than 
to  mediation.  Prussia  and  Denmark  had  a  treaty  with 
a  clause,  now  not  uncommon  among  nations,  pledging 
them  to  adjust  their  differences  by  arbitration,  but  that 
did  not  prevent  the  Schleswig-Holstein  war. 

The  friends  of  universal  arbitration,  in  reply  to  the 
contention  that  such  a  general  scheme  among  the 
nations  is  impracticable  and  visionary,  have  often  cited 
the  Supreme  Court  of  the  United  States  as  an  illustra- 
tion of  what  may  be  accomplished  by  an  international 
tribunal  of  arbitration.  Power  has  been  conferred  upon 
that  court  by  forty-five  distinct  political  entities,  sover- 
eign in  their  internal  or  domestic  affairs,  to  act  as  an 


352  THE  PRACTICE  OF  DIPLOMACY 

arbiter  or  judge  between  them  in  their  disputes  and 
between  their  respective  citizens.  The  analogy,  it  must 
be  confessed,  is  not  complete,  but  it  illustrates  what  the 
ardent  friends  of  international  arbitration  hope  to 
accomplish. 

Among  the  various  attempts  to  agree  upon  some 
general  plan  of  arbitration  or  other  jjeaceful  settlement 
of  international  disputes  may  be  mentioned  the  deliber- 
ations of  the  Congress  of  Vienna  in  1815,  the  agree- 
ment of  the  Germanic  Confederation  in  1834  for  appli- 
cation among  the  German  States,  the  conferences  of 
certain  of  the  Spanish- American  States  at  Caracas  in 
1883  and  at  other  times,  and  the  efforts  of  the  Institute 
of  International  Law  at  various  sessions  in  recent  years. 
As  noticed,  a  number  of  nations  have  agreed  in  sepa- 
rate treaties  with  other  powers  to  resort  to  arbitration 
rather  than  war,  an  example  of  which  will  be  found  in 
Article  21  of  the  treaty  of  1848  between  the  United 
States  and  Mexico.  The  most  recent  and  most  complete 
treaty  of  this  class  is  that  signed  between  Italy  and  the 
Argentine  Republic  July  23,  1898.  It  has  the  follow- 
ing characteristic  features:  It  provides  that  all  ques- 
tions, without  exception,  shall  be  submitted  to  arbitra- 
tion ;  that  none  of  the  arbitrators  shall  be  citizens  or 
residents  of  either  country ;  that  the  sessions  of  the 
tribunals  shall  be  held  outside  the  territory  of  either 
state ;  that  it  shall  have  power  to  decide  as  to  its  own 
jurisdiction  ;  and  provision  is  made  for  a  revision  by 
the  tribunal  of  its  award,  first,  if  false  documents  have 
been  used,  or,  second,  if  the  award  is  based  upon  an 
error  of  fact. 


ARBITRATION  AND  ITS  PROCEDURE  353 

The  United  States,  in  addition  to  its  record  of  fre- 
quent arbitration  in  special  cases,  has  made  efforts  to 
reach  a  general  plan  of  arbitration.  This  was  notably 
the  case  in  the  Pan-American  conference  of  1890,  in 
which  all  the  independent  nations  of  this  hemisphere 
were  represented.  A  general  scheme  of  arbitration 
applicable  to  all  the  American  nations  was  one  of  the 
announced  leading  objects  of  the  conference,  and  when 
the  subject  was  first  introduced  it  seemed  that  all  the 
delegates  approved  of  it ;  but  when  the  details  of  the 
plan  came  to  be  framed  it  was  found  that  some  of  the 
nations  did  not  favor  unrestricted  arbitration.  Mexico 
had  then  a  pending  dispute  with  Guatemala,  and  Chile 
and  Argentina  were  quarreling  about  their  boundary, 
and  these  three  nations  manifested  an  indisposition  to 
accede  to  the  project.  Mr.  Blaine,  secretary  of  state, 
took  a  deep  interest  in  its  success  and  sought  to  exer- 
cise his  personal  and  of&cial  influence  to  secure  unani- 
mous action,  but  without  satisfactory  results.  A  draft 
of  treaty  was  agreed  upon  and  the  majority  of  the 
nations  represented  signed  it,  including  the  United 
States,  but  owing  to  the  attitude  of  the  non-signatory 
countries  it  was  never  ratified,  and  the  movement  proved 
a  failure. 

A  more  recent  effort  to  agree  upon  and  put  in  opera- 
tion a  general  plan  of  arbitration  has  been  attended  with 
similar  fruitless  results.  On  the  part  of  the  friends  of 
peace  it  was  felt  that  if  the  two  great  English-speaking 
nations  could  frame  a  treaty  for  the  settlement  of  all 
differences  which  might  arise  between  them,  it  would  be 
a  long  step  toward  the  accomplishment  of  a  general 


354  THE  PRACTICE  OF  DIPLOMACY 

plan  for  all  the  civilized  nations.  Through  a  concerted 
movement  in  the  United  States  and  Great  Britain,  Con- 
gress and  Parliament  passed  resolutions  favoring  such 
a  treaty,  and  in  May,  1896,  a  large  and  representative 
convention  was  held  in  Washington,  embracing  among 
its  delegates  many  of  the  most  j)rominent  and  intelH- 
gent  of  our  citizens,  which  also  declared  in  favor  of 
such  a  treaty.  This  was  followed  in  January,  1897,  by 
a  treaty  of  arbitration,  signed  by  Secretary  Olney  and 
the  British  ambassador.  It  contemplated  the  settlement 
of  questions  in  difference  between  the  United  States 
and  Great  Britain  which  they  might  fail  to  adjust  by 
diplomatic  negotiations,  and  divided  them  into  two 
classes.  Matters  of  claims  and  others  which  did  not  in- 
volve territorial  questions  or  national  rights  were  to  be 
submitted  to  an  international  tribunal  of  arbitration  in 
the  usual  form  and  they  were  to  be  determined  by 
a  majority  vote.  The  other  class  of  questions  was  to  be 
referred  to  a  tribunal  of  six  members,  composed  of  three 
justices  of  the  Supreme  Court  or  Circuit  Courts  of  the 
United  States,  and  three  judges  of  the  British  Supreme 
Court  of  Judicature  or  Privy  Council,  and  their  decision 
should  not  be  final  unless  it  was  by  a  vote  of  five  to  one. 
The  treaty  was  limited  in  its  duration  to  five  years, 
unless  longer  continued  by  mutual  consent. 

It  would  seem  as  if  the  interests  of  the  two  countries 
were  properly  guarded  in  the  treaty,  and  it  met  with 
the  hearty  approval  of  the  friends  of  arbitration.  But 
when  it  was  submitted  to  the  Senate  for  ratification 
a  strong  opposition  was  developed,  and  after  a  long  dis- 
cussion it  was  rejected  because  of  failure  to  secure  the 


ARBITRATION  AND  ITS  PROCEDURE  355 

necessary  two-thirds  vote  in  its  favor,  although  it  re- 
ceived the  support  of  a  considerable  majority  of  the 
senators. 

One  of  the  latest  and  most  successful  efforts  to  frame 
a  general  treaty  among  the  nations  on  the  subject  was 
that  of  the  International  Conference  at  The  Hague  in 
1899,  which  agreed  upon  a  treaty.  This  distinguished 
body  of  diplomats  and  statesmen  had  before  them, 
among  others,  three  plans  submitted,  respectively,  by 
the  United  States,  Great  Britain,  and  Russia.  That  of 
the  United  States  was  for  the  creation  of  a  permanent 
tribunal,  composed  of  one  person  selected  by  each  of 
the  participating  nations  on  account  of  his  personal 
integrity  and  learning  in  international  law.  This  tribu- 
nal was  to  have  a  continuous  existence  and  an  office  for 
the  filing  of  cases.  Any  of  the  nations  represented  in 
the  tribunal  could  by  special  treaties  agree  to  submit 
their  differences  to  this  tribunal  sitting  as  an  entire 
body,  or  they  might  select  any  number  not  less  than 
three,  and  in  the  latter  case  none  of  them  was  to  be 
a  citizen  of  the  litigating  states.  The  British  plan  was 
quite  similar  to  that  of  the  United  States,  but  it  went 
more  into  detail  respecting  the  organization  and  proced- 
ure of  the  tribunal.  The  Russian  plan  was  made  the 
basis  of  the  treaty  finally  agreed  upon  and  signed,  and 
is  entitled  "  A  convention  for  the  peaceful  settlement  of 
international  disputes."* 

This  convention  contains  four  titles  and  sixty-one 
articles.  The  first  title  is  declaratory,  the  signatory 
powers  agreeing  "  to  employ  all  their  efforts  to  assure 

1  U.  S.  Treaties  in  Force,  907. 


356  THE  PRACTICE  OF  DIPLOMACY 

the  peaceful  settlement  of  international  differences." 
The  second  provides  for  the  exercise  of  good  offices  or 
mediation.  The  third  title  provides  for  the  creation  of 
commissions  of  inquiry  of  disinterested  parties  for  the 
determination  of  questions  of  fact,  such  for  instance  as 
the  cause  of  the  destruction  of  the  Maine.  Each  signa- 
tory power  is  left  free  to  accept  or  reject  proffered 
mediation  or  inquiry,  or  to  receive  or  decline  the  find- 
ings of  fact,  nor  are  these  steps  necessarily  to  stop  the 
preparations  for  or  progress  of  war.  The  fourth  title 
relates  to  arbitration  and  makes  up  much  the  greater 
part  of  the  convention.  It  especially  treats  of  two  sub- 
jects, a  permanent  tribunal  and  arbitration  procedure. 
The  membership  of  the  tribunal  is  to  comprise  not  more 
than  four  persons  nominated  by  each  one  of  the  signa- 
tory states,  its  offices  are  to  be  located  at  The  Hague, 
and  the  Netherlands  minister  of  foreign  affairs  and  the 
resident  ministers  of  the  powers  there  are  to  be  its 
administrative  council.  The  members  of  this  tribunal, 
in  such  numbers  as  may  be  agreed  upon  by  the  arbitrat- 
ing parties,  are  to  hold  themselves  ready  for  service 
when  called  upon,  but  unless  so  called  they  are  to  have 
no  functions.  The  method  and  rules  of  procedure  are 
laid  down  in  considerable  detail,  and  follow  very  much 
the  course  marked  out  for  the  Geneva  and  Bering  Sea 
tribunals  already  described. 

Several  cases  have  been  submitted  to  The  Hague 
Court  under  the  provisions  of  this  treaty,  and  its 
results  thus  far  have  been  satisfactory  and  encouraging. 
The  chief  defect  of  the  treaty  is  that  there  is  no  pro- 
vision for  compulsory  arbitration,  not  even  of  claims, 


ARBITRATION  AND  ITS  PROCEDURE  357 

and  each  signatory  power  is  left  free  to  accept  or 
decline  arbitration  at  will.  An  effort  has  been  made  to 
remedy  this  defect  by  a  number  of  the  nations  who  are 
signatory  parties  uniting  in  separate  conventions  stipu- 
lating for  arbitration  by  The  Hague  Court  in  all  ques- 
tions of  a  judicial  character  or  relating  to  the  interpre- 
tation of  treaties,  provided  they  do  not  involve,  in  the 
judgment  of  either  party,  the  independence,  the  honor, 
or  vital  interests  of  the  country. 

Nine  conventions  of  this  character  were  siofned  be- 
tween  the  United  States  and  various  European  powers 
and  Mexico,  and  submitted  to  the  Senate  for  its  ap- 
proval. I  referred  in  the  last  chapter  to  the  question 
raised  between  the  president  and  that  body,  and  the 
consequent  failure  of  the  treaties  to  go  into  operation. 
This  action  does  not  indicate  an  opposition  on  the 
part  of  either  the  President  or  the  Senate  to  the  prin- 
ciple of  international  arbitration.  Both  will  doubtless 
be  found  ready  on  all  suitable  occasions  to  maintain 
the  high  reputation  the  United  States  has  established 
for  the  settlement  of  controversies  with  other  countries 
by  this  peaceful  method  of  adjustment  when  diplomacy 
fails. 

The  governments  which  united  in  the  first  interna- 
tional conference  at  The  Hague  have  signified  their 
readiness  to  join  in  another  conference  at  the  same 
place,  to  study  the  promotion  of  peace  among  the 
nations,  and  it  is  soon  to  assemble.  The  cases  which 
have  already  been  heard  before  The  Hague  Court  have 
developed  some  imperfections  in  the  provisions  of  the 
treaty,  and  at  the  coming  conference  an  effort  will  be 


358  THE   PRACTICE   OF  DIPLOMACY 

made  to  remedy  them,  as  well  as  to  consider  other  sub- 
jects for  the  promotion  of  concord  among  peoples. 

The  establishment  of  The  Hague  Court  and  the  resort 
of  so  many  nations  to  it  for  the  settlement  of  their 
differences  are  a  most  hopeful  augury  for  the  future. 
Wars  unhappily  are  not  yet  to  cease  on  the  earth,  but 
we  have  reached  a  stage  in  the  world's  progress  when 
peace  is  recognized  as  the  normal  state  for  the  nations, 
and  when  the  appeal  to  reason  will  more  and  more  con- 
tinue to  prevail  over  force. 


CHAPTER  XVIII 

INTERNATIONAL    CLAIMS 

No  other  branch  of  international  relations  presents  to 
the  American  diplomatic  representative  such  a  fruitful 
source  of  embarrassment  as  the  private  claims  of  his 
countrymen  against  the  government  to  which  he  is 
accredited.  This  is  especially  the  case  in  the  countries 
on  this  hemisphere,  or  in  other  parts  of  the  world  where 
public  order  is  not  well  established,  or  where  the  judi- 
ciary system  is  imperfect  or  different  from  that  of  the 
United  States.  It  is  neither  a  gracious  nor  a  welcome 
act  for  a  diplomat  to  remind  the  government  with  which 
he  is  expected  to  cultivate  friendly  relations  that  it  is 
derelict  in  its  duties  and  obligations  to  his  countrymen. 

Claims  of  this  character  fall  into  two  classes  —  first, 
those  based  on  contracts ;  and,  second,  those  founded 
on  torts,  that  is,  injuries  or  wrongs  done  to  individuals 
independent  of  contracts.  In  a  single  chapter  it  will  be 
possible  to  make  only  a  brief  reference  to  some  of  the 
general  principles  governing  them,  referring  the  reader 
for  detailed  discussion  to  international  law  text-books 
and  diplomatic  correspondence. 

The  first  of  these,  contractual  claims,  usually  grow 
out  of  the  voluntary  acts  of  individuals  who  enter  into 
contracts  or  agreements  with  the  central  government  or 
other  authorities  of  a  foreign  country  for  the  construe- 


360  THE  PRACTICE  OF  DIPLOMACY 

tion,  for  instance,  of  a  railroad  or  other  work  or  enter- 
prise of  a  public,  municipal  or  local  character,  or  who 
purchase  bonds  or  obligations  of  a  government,  state, 
or  municipality.  In  such  cases  the  government  of  the 
United  States  has  held  that  it  will  not  undertake  to 
follow  its  citizens  with  its  protection ;  that  when  they 
enter  into  such  relations  they  are  presumed  to  have  fully 
considered  the  disposition  and  ability  of  the  foreign  au- 
thorities to  perform  their  obligations ',  that  having  taken 
risks  in  the  hope  of  securing  large  profits  they  must 
not  complain  if  their  government  requires  them  to  stand 
upon  the  same  footing  as  native  citizens  or  subjects  in 
the  relief  to  be  afforded  them ;  and  that  all  they  can 
expect  is  that  their  government  will  in  meritorious  cases 
exercise  its  unofficial  good  of&ces  in  their  behalf.^ 

The  methods  sometimes  resorted  to  by  governments 
to  compel  by  force  an  adjustment  of  the  claims  of  their 
citizens  or  subjects  can  be  illustrated  by  a  few  examples. 
Great  Britain,  France,  and  Spain  united,  in  1861,  in  a 
naval  and  military  expedition  against  Mexico  to  enforce 
the  claims  of  their  subjects  for  injuries  and  damages 
alleged  to  have  been  sustained  during  the  civil  wars  of 
that  period ;  and  they  invited  the  United  States  to  join 
them  in  the  expedition,  as  Americans  had  likewise  suf- 
fered from  the  revolutions.  Secretary  Seward,  however, 
declined  to  be  a  party  to  the  armed  expedition,  inform- 
ing the  allies  that  "  the  United  States  do  not  feel 
inclined  to  resort  to  forcible  remedies  for  their  claims 
at  the  present  moment,  when  the  Government  of  Mexico 
is  deeply  disturbed  by  factions  within,  and  exposed  to 

*  For  citation  of  authorities,  2  Wharton's  Digest,  654  S. 


INTERNATIONAL  CLAIMS  361 

war  with  foreign  nations."  ^  After  landing  at  Vera 
Cruz  and  advancing  some  distance  into  the  interior, 
dissensions  arose  among  the  allies ;  the  British  and 
Spanish  forces  withdrew  from  the  country,  and  left  the 
French  alone  to  pursue  their  plans,  which  proved  to  be 
rather  the  overthrow  of  the  republican  government  than 
the  collection  of  the  claims  of  their  subjects. 

In  1894  the  government  of  Nicaragua  arrested  the 
British  vice-consul  and  nearly  a  score  of  other  subjects 
and  expelled  them  from  the  country,  on  the  charge  of 
conspiring  to  overthrow  the  local  authorities  and  to 
maintain  the  pretensions  of  an  Indian  chief.  After  ex- 
amining the  charges  as  formulated  by  the  Nicaraguan 
government  the  British  foreign  office  decided  that  they 
were  not  sustained,  a  demand  was  made  for  the  pay- 
ment of  £15,500  as  compensation  for  personal  injuries, 
and  a  commission  to  assess  the  property  losses  sustained 
by  them.  A  British  squadron  was  sent  to  the  chief 
Nicaraguan  port  to  enforce  payment  and  an  armed  party 
seized  the  government  offices.  Nicaragua  asked  that 
the  question  of  the  legality  and  justice  of  its  acts  be 
submitted  to  arbitration,  but  this  was  refused,  and  there 
was  no  other  recourse  than  to  comply  with  the  British 
demand.^ 

Great  Britain,  Germany,  and  Italy  united,  in  1902, 
in  a  naval  expedition  against  Venezuela  to  enforce  the 
claims  of  various  of  their  subjects.  These  claims  almost 
wholly  were  of  a  contractual  character  and  their  justice 
disputed.  Before  the  blockade  of  Venezuelan  ports  took 

1  52  British  and  For.  St.  Papers,  394. 
3  U.  S.  For.  Rel.  1894, 1895,  Nicaragua. 


362  THE  PRACTICE  OF  DIPLOMACY 

place  the  allied  governments  gave  assurances  to  the 
United  States  that  no  territorial  acquisition  was  con- 
templated. After  the  ports  had  been  seized,  through 
the  influence  of  the  President  of  the  United  States  an 
agreement  was  reached  to  submit  the  claims  of  the 
allies  and  also  those  of  other  countries  to  arbitration. 

All  of  tliese  cases  cited  were  the  arbitrary  acts  of 
strong  nations  against  weak  nations,  enfeebled  by  intes- 
tine strife.  It  is  an  acknowledged  principle  of  interna- 
tional law  that  independent  states  stand  on  a  perfect 
equality  one  with  another,  and  by  virtue  of  this  sover- 
eignty and  independence  they  are  entitled  to  equal  con- 
sideration and  treatment.  The  intervention  which  has 
just  been  described  would  never  have  taken  place 
against  nations  equal  in  military  strength  with  these 
debt-collecting  aggressors.  Some  other  means  than 
force  would  have  been  used  to  reach  an  adjustment. 

While  the  blockade  of  Venezuelan  ports  was  being 
maintained,  the  secretary  of  foreign  relations  of  the 
Argentine  Republic,  Dr.  Drago,  brought  to  the  atten- 
tion of  the  secretary  of  state  of  the  United  States  the 
views  of  his  government  on  the  subject,  in  an  able  note 
addressed  to  the  Argentine  minister  in  Washington. 
His  position,  briefly  stated,  was  that  the  principles  of 
international  law  did  not  justify  one  nation  in  exacting 
by  force  of  arms  the  payment  by  another  nation  of 
public  debts  (that  is,  contractual  obligations)  due  to  the 
citizens  of  the  former. 

He  enforced  this  position  by  cogent  arguments,  and 
none  more  effective  than  his  citation  of  the  uniform 
position  of  the  United  States.  He  quoted  from  Alexan- 


INTERNATIONAL  CLAIMS  363 

der  Hamilton  as  follows :  "  Contracts  between  a  nation 
and  private  individuals  are  obligatory  according  to  the 
conscience  of  the  sovereign,  and  may  not  be  the  object 
of  compelling  force.  They  confer  no  right  of  action 
contrary  to  the  sovereign  will."  He  also  cited  the  fact 
that  the  people  of  the  United  States,  by  an  amendment 
of  the  federal  Constitution  (XI),  had  prohibited  for- 
eigners from  enforcing  their  claims  against  the  states  of 
the  Union  by  judicial  suits. 

He  asserted  that  the  principle  of  international  law 
for  which  he  contended  was  a  necessary  corollary  of  the 
Monroe  Doctrine,  as  the  enforcement  of  public  debts 
could  not  be  made  effective,  in  case  of  resistance,  with- 
out the  occupation  of  territory.  He  conceded  that  the 
Latin-American  nations  had  often  defaulted  on  their 
financial  obligations,  and  he  claimed  that  the  views  he 
advanced  were  in  nowise  a  defense  of  bad  faith,  disor- 
der, and  voluntary  insolvency,  but  were  put  forth  in 
the  interest  of  national  independence  and  sovereignty. 
"  Long,  perhaps,"  he  wrote,  "  is  the  road  that  the  South 
American  nations  still  have  to  travel.  But  they  have 
faith  enough  and  energy  and  worth  sufficient  to  bring 
them  to  their  final  development  and  mutual  support." 

He  closed  his  note,  inspired  by  the  European  naval 
intervention  in  the  affairs  of  Venezuela,  with  the  re- 
quest that  the  government  of  the  United  States  might 
be  informed  of  "  our  point  of  view  regarding  the  events 
in  the  future  development  of  which  that  government  is 
to  take  so  important  a  part,  in  order  that  it  may  have 
it  in  mind  as  the  sincere  expression  of  the  sentiments  of 
a  nation  that  has  faith  in  its  destiny  and  in  that  of  this 


364  THE  PRACTICE  OF  DIPLOMACY 

whole  continent,  at  whose  head  march  the  United 
States,  reahzing  our  ideals  and  affording  us  examples."^ 

This  diplomatic  paper  was  widely  published  at  the 
time  by  the  press  of  the  United  States,  and  was  quite 
generally  applauded  as  a  wise  and  proper  exposition  of 
the  doctrine  which  the  governments  of  the  American 
hemisphere  should  adopt  as  a  continental  policy  and 
should  seek  to  have  recognized  as  a  principle  of  inter- 
national law  by  the  nations  of  the  world.  The  practice 
followed  by  European  governments  of  enforcing  the 
contractual  claims  of  their  subjects  against  the  weaker 
American  nations  was  the  origin  of  the  present  uncer- 
tain relation  of  the  United  States  toward  the  Republic 
of  San  Domingo  to  which  I  have  made  reference  in  a 
preceding  chapter.  The  situation  was  fully  and  forcibly 
stated  in  the  President's  annual  message  of  December  5, 
1905,  from  which  the  following  extract  is  taken  : 

"  Our  own  government  has  always  refused  to  enforce 
such  contractual  obligations  on  behalf  of  its  citizens  by 
an  appeal  to  arms.  It  is  much  to  be  wished  that  all 
foreign  governments  would  take  the  same  view.  But 
they  do  not ;  and  in  consequence  we  are  liable  at  any 
time  to  be  brought  face  to  face  with  disagreeable  alter- 
natives. .  .  .  The  previous  rulers  of  Santo  Domingo 
had  recklessly  incurred  debts,  and  owing  to  her  internal 
disorders  she  had  ceased  to  be  able  to  provide  means  of 
paying  the  debts.  The  patience  of  her  foreign  creditors 
had  become  exhausted,  and  at  least  two  foreign  nations 
were  on  the  point  of  intervention,  and  were  only  pre- 
vented from  intervening  by  the  unofficial  assurance  of 

»  U.  S.  For.  Rel.  1902,  1. 


INTERNATIONAL  CLAIMS  365 

this  Government  that  it  would  itself  strive  to  help  Santo 
Domingo  in  her  hour  of  need.  In  the  case  of  one  of 
these  nations,  only  the  actual  opening  of  negotiations 
to  this  end  by  our  Government  prevented  the  seizure  of 
territory  in  Santo  Domingo  by  a  European  power.  Of 
the  debts  incurred  some  were  just,  while  some  were 
not  of  a  character  which  really  renders  it  obligatory  on, 
or  proper  for,  Santo  Domingo  to  pay  them  in  full." 

It  is  understood  that  one  of  the  European  nations 
alluded  to  by  the  President  was  Belgium.  The  character 
of  the  claims  for  wliich  that  government  was  threatening 
armed  reprisals  was  explained  in  a  speech  by  Senator 
Rayner  during  the  consideration  of  the  subject  pre- 
sented by  the  message  of  the  President.  An  extract 
from  the  annual  report  of  the  London  Council  of  the 
Corporation  of  Foreign  Bondholders,  which  he  read 
in  the  Senate,  shows  that  in  1869  a  Belgian  subject 
entered  into  a  contract  with  the  government  of  San 
Domingo  for  the  construction  of  railways  in  that  re- 
public. Under  the  contract  the  government  issued  bonds 
to  the  amount  of  £750,000,  secured  by  a  pledge  on  the 
customs  and  internal  taxes.  The  bonds  sold  for  fifty 
per  cent  of  their  face  value.  Of  the  sum  realized  the 
contractor  received  £100,000  as  his  fee  and  the 
government  of  San  Domingo  only  £38,000 ;  and  it  had 
obligated  itself  to  pay  annually  for  interest  and 
sinking  fund  £58,900.  It  does  not  appear  from  the 
report  that  any  portion  of  the  railways  was  constructed.^ 

1  Congressional  Record,  vol.  40,  no.  18,  792,  Jan.  8,  1906. 
In  a  spirit  of  sarcasm  the  Senator  thus  pictured  the  threatened  armed 
conflict :  "  The  battle-cry  of  the  British  Navy  has  been  *  England  expects 


366  THE  PRACTICE  OF  DIPLOMACY 

The  general  rule  as  to  the  second  class  of  claims  — 
those  founded  on  torts  —  is  that  the  injured  party  must 
in  the  first  instance  seek  his  remedy  through  the  au- 
thorities of  the  country  where  the  injury  was  inflicted; 
but  if  he  encounters  a  denial  of  justice  or  no  remedy  is 
afforded,  his  own  government  will  assume  the  protec- 
tion of  his  claim  and  seek  to  have  it  satisfied. 

The  foregoing  rule  is  qualified,  however,  in  various 
ways.  For  example,  a  government  is  not  responsible  to 
foreigners  for  injuries  received  by  them  from  the  opera- 
tions of  war  in  its  territory,  or  from  insurgents  whom 
it  could  not  control  or  whom  the  claimant's  government 
has  recognized  as  belligerents.  The  language  of  Secre- 
tary Marcy  is :  "  The  undersigned  is  not  aware  that  the 
princij)le  that  foreigners  domiciled  in  a  belligerent  coun- 
try must  share  with  the  citizens  of  that  country  in  the 
fortunes  of  war,  has  ever  been  seriously  controverted  or 
departed  from  in  practice."  ^ 

Secretary  Webster,  in  the  case  of  the  riot  in  1851 
against  Spanish  subjects  resident  at  New  Orleans 
enunciated  the  principle  that  foreigners  residing  in  the 

every  man  to  do  his  duty  ; '  this  battle-cry  shall  be  '  Belgium  expects 
every  man  to  collect  his  money.'  The  dying  words  of  Lawrence  were 
'  Don't  give  up  the  ship,  boys  ; '  here  the  flagship  shall  signal  to  the  fleet 
*  Don't  give  up  your  coupons,  boys  ; '  and  as  the  battle  closes  the  valiant 
crew  of  brokers,  bankers,  underwriters,  and  promoters,  paraphrasing  the 
thrilling  words  of  Perry,  can  flash  a  cable  to  the  Westerndoops  of  Am- 
sterdam :  '  The  revenue  cutters  and  the  customhouses  of  Puerto  Plata 
and  Monte  Christi  have  fallen  ;  we  have  met  the  enemy  and  they  are 
ours.    Advance  the  bid  on  Dominican  bonds.' " 

For  a  discussion  of  the  Monroe  Doctrine  as  presented  in  the  San  Do- 
mingo question,  see  Senator  Rayner's  speech  here  cited. 

1  2  Wharton's  Digest,  612  &.;  2  ib.  576-586. 


INTERNATIONAL  CLAIMS  367 

United  States  are  not  entitled  to  greater  protection  than 
the  laws  aiford  to  citizens  of  the  country;  that  they 
must  resort  to  the  local  authorities  and  courts  for  a 
redress  of  their  injuries ;  and  that  the  federal  govern- 
ment is  not  responsible  in  pecuniary  damages  for  losses 
occasioned  by  mobs.  The  same  principle  was  main- 
tained by  Secretaries  Evarts  and  Bayard  in  the  riots 
against  Chinese  subjects,  and  by  Secretary  Blaine  in 
the  lynching  of  ItaHans  at  New  Orleans.  Nevertheless, 
in  all  these  cases  Congress,  on  the  recommendation  of 
the  Executive  and  as  an  act  of  grace  and  comity,  has 
made  appropriations  for  the  payment  of  damages  sus- 
tained.^ 

The  claims  of  American  citizens  against  foreign  gov- 
ernments must  be  presented  through  the  Department  of 
State.  A  set  of  rules  has  been  adopted  by  that  depart- 
ment, with  printed  instructions  as  to  the  manner  of 
their  preparation,  which  are  furnished  to  all  applicants. 
The  diplomatic  representatives  of  the  United  States  are 
enjoined  by  the  printed  instructions  not  to  present  such 
claims  except  under  instructions  from  the  department.^ 
Neither  is  it  proper  that  they  should  manifest  an  undue 
interest  in  pressing  them.  Some  American  representa- 
tives have  fallen  into  discredit  and  awakened  suspicion 
by  special  activity  in  behalf  of  their  claimant  country- 
men. 

Aliens  preferring  claims  against  the  United  States 
are  required  to  present  them  through  the   diplomatic 

1  H.  Ex.  Doc.  113,  32d  Cong.,  1st  Sess.;  10  Stat,  at  L.  89;  H.  Ex.  Doc. 
102,  49th  Cong.,  1st  Sess.;  U.  S.  For.  Rel.  1891,  682,  727. 
'  Printed  Instructions,  68. 


368  THE  PRACTICE  OF  DIPLOMACY 

representative  of  their  government  in  Washington. 
They  cannot  submit  them  directly  to  the  Department  of 
State,  nor  can  they  apply  to  Congress  for  relief. 

Claims  of  citizens  of  the  United  States  against  for- 
eign governments  and  claims  of  aliens  against  the 
United  States  may  be  examined  and  passed  upon  by  the 
Department  of  State,  in  which  there  is  a  bureau  for 
that  purpose,  in  charge  of  an  officer  of  the  department 
of  justice,  learned  in  the  law.  This  bureau  is  often  over- 
burdened with  work,  and  at  best  the  process  of  securing 
an  adjudication  by  the  respective  governments  is  tedious. 
When  there  is  a  diplomatic  deadlock,  resort  is  often 
had  to  arbitration. 

In  case  of  an  accumulation  of  claims  between  govern- 
ments, it  is  quite  the  practice  to  submit  them  to  a  mixed 
commission  with  an  umpire.  Several  of  such  commis- 
sions have  been  created  between  the  United  States  and 
Great  Britain  and  other  powers.  After  the  civil  war 
the  government  of  the  United  States  found  itself  em- 
barrassed with  a  large  number  of  claims  of  aliens. 
Mixed  commissions  were  agreed  upon  with  Mexico  in 
1868,  with  Great  Britain  in  1871,  and  with  France  in 
1880.  These  commissions,  as  well  as  others  in  which 
the  United  States  has  been  a  party,  developed  the  fact 
that  individuals  are  accustomed  very  greatly  to  exag- 
gerate their  claims  against  governments.  In  the  Amer- 
ican and  Mexican  commission  American  citizens  filed 
claims  as^ainst  Mexico  to  the  enormous  amount  of 
$470,000,000,  and  obtained  awards  for  only  $4,125,- 
000  (of  which  more  than  one  fourth  was  afterwards 
proved  to  be  fraudulent),  considerably  less  than  one  per 


INTERNATIONAL  CLAIMS  369 

cent  of  the  gross  sum  claimed.  In  the  British  commis- 
sion claims  were  filed  against  the  United  States  for 
$96,000,000  and  less  than  $2,000,000  was  awarded.  In 
the  French  commission  the  claims  against  the  United 
States  amounted  to  $35,000,000,  and  $650,000  was 
awarded.  In  these  two  commissions  the  awards  were 
less  than  two  per  cent  of  the  sums  claimed. 

The  method  of  adjusting  claims  by  mixed  or  inter- 
national commissions  has  been  found  to  be  quite  expen- 
sive and  by  no  means  prompt.  The  personnel  of  the 
commissions  is  usually  made  up  of  individuals  who  have 
never  before  served  in  such  capacity,  are  chosen  for  a 
temporary  duty,  and  in  some  instances  are  not  even 
educated  lawyers.  The  result  is  that  their  decisions  are 
conflicting,  and  not  always  in  consonance  with  inter- 
national law  and  established  principles  of  jurisprudence. 
For  these  reasons,  and  because  there  were  still  a  large 
number  of  unsettled  alien  war  claims,  in  1873  President 
Grant  recommended  to  Congress  the  creation  of  a  spe- 
cial court  to  hear  and  determine  the  claims  of  aliens 
against  the  United  States.^ 

Secretary  Fish,  in  elaborating  and  enforcing  the 
President's  recommendation,  proposed  that  the  court 
should  consist  of  three  members  and  that  an  appeal 
from  It  should  he  to  the  United  States  Supreme  Court. 
To  this  court  the  claims  of  citizens  or  subjects  of  for- 
eign states  against  the  United  States  were  to  be  referred 
by  the  secretary  of  state,  with  the  concurrence  of  the 
foreign  government.  Such  a  court  would  take  a  large 
amount  of  vexatious   business  out  of  diplomacy.     It 

1  7  Presidents'  Messages,  237. 


370  THE  PRACTICE  OF  DIPLOMACY 

would  be  a  guard  against  the  surprises  to  which  com- 
missions are  exposed,  against  ex  'parte  testimony  and 
perjury.  It  would  tend  to  expedite  cases,  would  give 
uniformity  in  practice  as  well  as  uniformity  in  the 
tenor  of  decisions.  With  an  appeal  to  the  Supreme 
Court,  there  would  be  an  assurance  of  the  establish- 
ment of  well-founded  principles  which  would  become 
engrafted  into  accepted  international  law.^ 

A  bill  was  introduced  on  the  subject,  and  the  Com- 
mittee of  the  House  to  which  it  was  referred  submitted 
an  elaborate  report  on  the  subject,  recommending  that 
jurisdiction  be  conferred  upon  the  existing  Court  of 
Claims  for  the  purposes  stated,  that  court  already 
having  a  limited  jurisdiction  as  to  foreign  claims.  No 
action  was  had  upon  the  subject.  It  has  been  suggested 
in  the  Conference  of  the  American  Republics  that  a 
permanent  court  of  claims  be  created  for  all  the  Amer- 
ican nations.  A  permanent  court  would  be  an  improve- 
ment over  the  existing  practice  of  special  commissions. 

As  has  already  been  shown  the  United  States  has 
frequently  resorted  to  arbitration  to  settle  disputed 
claims,  and  this  process  has  been  found  satisfactory  in 
most  cases.  In  some  instances,  however,  it  has  appeared 
after  the  awards  were  rendered  that  they  had  been 
secured  by  fraud  and  perjury  or  by  other  corrupt 
methods,  and  in  all  such  cases,  when  the  awards  have 
been  in  favor  of  American  citizens,  the  government  of 
the  United  States  has  not  hesitated  to  undo  the  wrong 
inflicted  on  other  governments.  It  will  be  of  interest  to 
notice  some  of  these  cases. 

1  H.  Report  no.  134,  42d  Cong.,  2(i  Sess.  4. 


INTERNATIONAL  CLAIMS  371 

A  conspicuous  instance  where  the  award  was  ques- 
tioned and  not  enforced  is  that  under  the  claims  con- 
vention of  1866  with  Venezuela.  This  is  the  only  case 
in  our  history  where  fraud  and  corruption  have  been 
estabhshed  against  an  arbitration  tribunal.  Awards 
were  rendered  in  favor  of  American  citizens  to  the 
amount  of  over  $1,250,000;  but  soon  after  the  ad- 
journment of  the  commission  in  1868  charges  of  irregu- 
larity and  fraud  on  the  part  of  its  members  were  made 
at  Washington  by  the  Venezuelan  government,  and 
an  investigation  established,  to  the  satisfaction  of  the 
Congress  of  the  United  States,  the  fact  that  a  corrupt 
arrangement  had  been  made  between  the  American 
commissioner,  the  umpire  (a  Venezuelan),  the  United 
States  minister  to  Venezuela,  and  his  relative,  the  lead- 
ing attorney  before  the  commission,  by  which  a  large 
part  of  each  claim  represented  by  the  latter  and  allowed 
by  the  commission  was  to  be  divided  among  the  persons 
named.  Awards  upon  the  claims  held  by  this  attorney 
made  up  about  two  thirds  in  amount  of  the  total  awards, 
and  several  meritorious  claims  not  presented  by  him 
were  rejected.  For  many  years  the  successful  claimants 
and  the  other  parties  interested  were  able  to  obstruct 
legislation  to  correct  the  wrong.  For  a  time  Venezuela 
made  payment  in  installments  as  provided,  but  after 
some  years  had  passed  without  relief  further  payments 
were  suspended.  Finally  a  new  treaty  reopening  all  the 
cases  was  passed  and  went  into  effect  in  June,  1889, 
more  than  twenty  years  after  the  first  commission  ad- 
journed, and  a  new  commission  met  in  October,  1889, 
and   completed  its  labors   in   September,  1890.     The 


372  THE   PRACTICE  OF  DIPLOMACY 

result  was  that  of  the  twenty-four  claims  allowed  by  the 
old  commission  only  nine  were  passed  on  favorably,  in 
the  sum  of  $356,000,  instead  of  $1,250,000;  and  three 
old  claims  rejected  by  the  former  were  allowed  by  the 
new  commission  to  the  amount  of  $415,000.^ 

Two  claims  for  alleged  damages  sustained  by  Ameri- 
can citizens  at  the  hands  of  the  authorities  of  Haiti, 
after  being  adopted  and  strongly  pressed  diplomatically 
by  the  United  States,  were  submitted  to  arbitration  by 
a  diplomatic  protocol  in  1884.  A  single  arbitrator  was 
appointed  in  the  person  of  a  retired  justice  of  the  Supreme 
Court  of  the  United  States,  and  in  1885  an  award  was 
rendered  in  both  cases  in  sums  aggregating  $175,000. 
Soon  after  the  awards  were  made  charges  of  fraud  on 
the  part  of  the  claimants  were  preferred,  and  a  motion 
was  heard  by  the  arbitrator  to  reopen  one  of  the  cases 
on  the  ground  of  newly  discovered  evidence.  The  latter 
held  that  his  power  over  the  award  was  extinct,  but 
stated  that  the  newly  discovered  evidence  would  have 
materially  affected  his  decision  if  it  had  been  presented 
in  time.  Mr.  Bayard,  secretary  of  state,  made  an  inves- 
tigation in  the  light  of  new  facts,  and  held  that  neither 
of  the  cases  had  any  foundation  in  justice,  and  that  a 
sovereign  state  could  not  in  honor  press  an  unconscion- 
able and  unjust  award.  The  Haitian  government  was 
accordingly  released  from  the  payment  of  these  claims.'^ 

In  1858  a  claim  held  by  an  American  company  against 
the  Republic  of  Paraguay  was  submitted  to  arbitration 
by  the  two  governments.    The  commissioners  united 

^  2  Moore's  Int.  Arbitrations,  chap.  39. 
2  U.  S.  For.  Rel.  1887,  593. 


INTERNATIONAL  CLAIMS  373 

in  an  award  rejecting  the  claim.  President  Buchanan 
declined  to  accept  the  award  on  the  ground  that  the 
commissioners  had  exceeded  their  powers  in  this,  that 
Paraguay  had  accepted  responsibility  for  the  acts  com- 
plained of,  and  that  the  only  question  submitted  to 
them  was  the  amount  of  damages  sustained.  Repeated 
but  fruitless  efforts  were  made  to  secure  a  recognition 
of  the  claim,  and  of  late  years  it  has  ceased  to  receive 
the  attention  of  the  Department  of  State.^ 

The  claim  of  the  owners  of  two  American  vessels, 
seized  by  Peruvian  authorities  in  the  revolution  of  1856, 
was  the  subject  of  much  correspondence  and  finally 
resulted  in  the  suspension  of  diplomatic  relations.  In 
1862  a  convention  was  signed  referring  the  claim  to  the 
decision  of  the  King  of  the  Belgians.  Official  notice  of 
his  selection  was  given  to  the  King  by  the  two  govern- 
ments, but,  before  the  case  had  been  formally  submitted 
to  him,  he  informed  the  governments  that  he  could  not 
accept  the  trust.  The  minister  of  the  United  States  at 
Brussels  reported  confidentially  to  the  secretary  of 
state  that,  in  an  interview  with  the  King,  his  Majesty 
stated  that  he  had  looked  into  the  case  and  found  that 
if  he  accepted  the  position  of  arbiter  he  would  have 
been  constrained  to  make  a  decision  unfavorable  to  the 
United  States,  and  that  this  had  been  his  motive  for 
declining,  although  he  had  alleged  other  reasons.  Upon 
receiving  this  information  Secretary  Seward  addressed 
a  note  to  the  Peruvian  minister  in  Washington  advising 
him  that  it  was  not  the  intention  of  our  sfovernment  to 
pursue  the  subject  further.    The  Peruvian  government 

1  2  Moore's  Int.  Arbitrations,  1485. 


374  THE  PRACTICE  OF  DIPLOMACY 

expressed  its  appreciation  of  what  it  termed  a  spontane- 
ous act  of  moderation  and  justice.* 

American  citizens  sustained  certain  damages  on  ac- 
count of  the  war  between  China  and  Great  Britain,  and 
in  1858  by  the  terms  of  a  convention  with  the  minister 
of  the  United  States  the  Chinese  government  paid  over 
to  him  the  lump  sum  of  ^735,000  in  satisfaction  of  the 
claims.  A  domestic  commission  was  appointed  by  the 
United  States  to  assess  the  damages,  and  it  was  found 
that  these  had  been  greatly  exaggerated.  After  all  pos- 
sible claims  had  been  paid,  a  large  sum  remained  in  the 
United  States  Treasury.  After  being  there  for  many 
years.  Congress  in  1885  directed  the  return  of  the  bal- 
ance, ^453,400,  to  the  Chinese  government.  The  minis- 
ter in  Washington,  in  acknowledging  its  receipt,  said  : 
"  This  generous  return  .  .  .  cannot  fail  to  elicit  feel- 
ings of  kindness  and  admiration  on  the  part  of  the 
government  of  China."  ^ 

A  convention  was  entered  into  between  the  United 
States  and  Mexico  in  1868  whereby  the  claims  of  the 
citizens  of  both  countries  were  referred  to  an  interna- 
tional tribunal  composed  of  one  American  commissioner, 
one  Mexican  commissioner,  and  an  umpire  from  a  neu- 
tral nation,  to  whom  were  referred  all  cases  on  which 
the  commissioners  were  divided.  The  commission  ren- 
dered awards  against  Mexico  in  favor  of  American  citi- 
zens in  the  sum  of  over  f  4,000,000.  Immediately  after 
the  adjournment,  in  1876,  the  Mexican  government 
came  into  possession  of  newly  discovered  evidence, 
which  if  not  successfully  rebutted,  would  establish  the 

1  Moore's  lat.  Arbitrations,  1612.  *  U.  S.  For.  Rel.  1885,  182. 


INTERNATIONAL  CLAIMS  375 

fact  that  two  of  the  claims  (La  Abra  and  Weil),  to  the 
amount  of  $1,170,000,  were  without  merit  and  abso- 
lutely fraudulent.  This  evidence  was  laid  before  the 
secretary  of  state  and  informally  brought  to  the  atten- 
tion of  Congress,  which  body  in  1878  passed  an  act 
authorizing  the  secretary  of  state  to  withhold  payment 
to  the  claimants  until  the  charges  could  be  investigated, 
with  a  view  to  protecting  "  the  honor  of  the  United 
States."  Upon  the  evidence  submitted  by  Mexico,  the 
secretary  of  state  decided  that  the  evidence  brought 
into  grave  doubt  the  substantial  integrity  of  the  claims, 
and  "  that  the  honor  of  the  United  States  does  require 
that  the  two  cases  should  be  further  investigated  by  the 
United  States  to  ascertain  whether  this  government  has 
been  made  the  means  of  enforcing  against  a  friendly 
power  claims  of  her  citizens  based  upon  or  exagger- 
ated by  fraud."  He  reported  to  the  President  that  his 
Department  was  not  clothed  with  sufficient  judicial 
powers  to  make  the  investigation,  and  the  subject  was 
referred  back  to  Congress  for  further  legislation. 

All  efforts  to  that  end  were  strongly  resisted  in  Con- 
gress by  the  claimants  on  the  ground  that  the  question 
was  res  judicata,  that  the  parties  to  the  award  had 
acquired  vested  rights  of  which  they  could  not  be  de- 
prived, that  the  award  of  an  international  tribunal  could 
not  be  reopened,  and  that  Congress  was  without  power 
to  provide  for  a  rehearing  of  the  cases.  Under  the  pro- 
visions of  the  convention  Mexico  was  paying  to  the 
United  States  the  amount  due  on  the  awards  in  install- 
ments of  $300,000,  annually,  and  after  three  years  had 
passed  without  legislation,  the  secretary  of  state  decided 


376  THE  PRACTICE  OF  DIPLOMACY 

to  pay  to  tlie  claimants  in  the  two  cases  the  installments 
then  received.  But  the  succeeding  secretary  of  state 
suspended  all  further  payments,  and  there  accumulated 
in  the  treasury  of  the  United  States  $750,000,  paid 
in  by  Mexico  on  account  of  these  two  awards.  Two 
attempts  were  made  by  the  claimants  to  obtain  posses- 
sion of  this  money  by  writ  of  mandamus  from  the  Dis- 
trict Court  upon  the  secretary  of  state,  but  in  both 
instances  on  appeal  to  the  United  States  Supreme  Court 
the  writ  was  refused.  In  its  decision  this  court  said : 
"  As  between  the  United  States  and  the  claimants,  the 
honesty  of  the  claim  is  always  open  to  inquiry  for  the 
purpose  of  fair  dealing  with  the  government  against 
which,  through  the  United  States,  a  claim  has  been 
made." 

After  still  further  years  of  delay,  occasioned  by  the 
obstructive  tactics  of  the  claimants,  in  1892  Congress 
passed  an  act  referring  the  two  cases  to  the  Court  of 
Claims  for  investigation,  to  determine  whether  the 
awards  had  been  obtained  by  fraud  and  perjury,  and  if 
so  found  the  money  in  the  treasury  was  to  be  returned 
to  Mexico.^  The  rehearing  dragged  along  through  six 
years  when  the  Court  of  Claims  decided  that  the  awards 
had  been  obtained  by  fraud  and  perjury  and  that  the 
money  on  deposit  in  the  Department  of  State  should  be 
returned  to  Mexico ;  and  upon  appeal  by  the  claimants 
in  one  of  the  cases  to  the  Supreme  Court  the  decision 
•was  affirmed  in  December,  1899. 

^  For  history  of  these  cases  to  this  point,  2  Moore's  Int.  Arbitrations, 
1324-1348.  A  claim  of  similar  character  to  that  of  La  Abra  was  that  of 
George  A.  Gardiner,  fully  reported  in  the  same  volume,  1255  flE. 


INTERNATIONAL  CLAIMS  377 

The  money  retained  by  the  Secretary  of  State  was, 
thereupon,  returned  by  him  to  Mexico ;  and  the  fraud 
was  so  fully  established  that  Congress  made  an  appro- 
priation sufficient  to  make  good  the  amount  distributed 
to  the  claimants,  and  the  full  sum  of  the  awards  was 
returned  to  Mexico/  It  has  thus  been  determined  that 
international  arbitration  cannot  be  used  by  claimants  to 
perpetrate  or  perpetuate  fraud,  and  that,  in  the  lan- 
guage of  the  Supreme  Court,  "no  technical  rules  of 
pleading,  as  applied  in  municipal  courts,  ought  ever  to 
be  allowed  to  stand  in  the  way  of  the  national  power 
to  do  what  is  right  under  all  the  circumstances." 

The  foregoing  cases  show  that,  though  the  govern- 
ment of  the  United  States  is  not  infrequently  misled 
by  designing  claimants  and  by  the  unwise  action  of  its 
diplomatic  representatives,  it  has  not  hesitated  when 
fully  possessed  of  the  facts  to  undo  any  injustice  in- 
flicted upon  friendly  powers  by  means  of  claims  com- 
missions ;  and  that  fraud,  once  exposed,  cannot  reap  the 
benefits  of  its  iniquity  under  the  cover  of  the  finahty 
of  an  international  award. 

It  is  gratifying  to  record  that  in  other  matters  involv- 
ing international  claims  and  indemnities  the  United 
States  has  exhibited  a  spirit  of  liberaHty  and  fair  deal- 
ing, especially  towards  weaker  nations.  The  return  of 
the  undistributed  balance  of  the  Chinese  claims  indem- 
nity of  1858  has  been  already  cited.  The  return  to 
Japan  in  1883  of  the  sum  exacted  from  it  in  1863,  as  an 
indemnity  for  expenses  of  the  naval  expedition  in  con- 

1  32  Court  of  Claims,  462;  35  lb.  42;  178  U.  S.  423;  U.  S.  For.  Rel. 
1900,  781,  783;  32  St.  at  L.  5. 


378  THE   PRACTICE  OF  DIPLOMACY 

junction  with  three  European  powers  to  force  an  open- 
ing of  the  Strait  of  Shimonoseki,  is  another  evidence 
of  the  disposition  of  the  United  States  in  that  direc- 
tion.^ There  remains,  however,  an  undetermined  ques- 
tion of  this  character  on  the  part  of  the  government  of 
the  United  States. 

In  1901  the  United  States  united  with  the  other  for- 
eign powers  represented  at  Peking  in  compeUing  China 
to  make  amends  for  the  aggressions  attending  the  Boxer 
outbreak  of  1900.  Among  other  requirements  the  sum 
of  450,000,000  taels  was  fixed  upon  by  the  powers  as 
an  indemnity  to  be  paid  for  losses  and  expenses  "  of 
States,  companies  or  societies,  private  individuals,  and 
Chinese  "  in  the  employ  of  foreigners,  on  account  of  the 
Boxer  troubles.  The  Chinese  government  objected  to 
this  amount  as  excessive  and  beyond  its  ability  to  pay, 
and  proposed  to  submit  the  indemnities  to  The  Hague 
Court  for  examination  and  adjudication.  The  represent- 
ative of  the  United  States  was  wilHng  to  make  this 
reference  or,  as  an  alternative,  to  agree  to  a  reduction 
of  the  amount  demanded,  but  he  was  overruled  by  his 
European  colleagues ;  and  China  was  forced  to  submit 
to  the  military  duress.^ 


2 


1  U.  S.  For.  Rel.  1883,  606. 

*  The  indemnity  was  distributed  as  follows: 

Taels. 

Germany 90,070,515 

Belgium 8,484,345 

United  States 32,938,0551 

France 70,878,240 

Great  Britain 50,712,795 

1  Equivalent  of  $24,168,357. 

For  details  as  to  the  negotiations,  see  U.  3  For.  Rel.  1901,  App.  China. 


INTERNATIONAL  CLAIMS  379 

It  does  not  appear  officially  how  this  enormous  sum 
was  estimated,  but  subsequent  events  have  shown  that 
there  entered  into  the  grand  total  greatly  exaggerated 
private  claims.  As  an  instance  of  this  it  is  stated  that 
the  Belgian  Company  engaged  in  the  construction  of 
the  railroad  from  Peking  to  Hankow  filed  its  claim  for 
losses  at  30,000,000  francs,  and  that  its  damages  as 
assessed  were  only  3,000,000  francs ;  and  it  is  under- 
stood that  there  were  many  other  claims  of  a  like  char- 
acter/ The  private  claims  of  Americans  were  examined 
and  fixed  by  a  committee  of  United  States  officials 
appointed  by  the  American  minister  at  Peking.  It  is 
understood  that  they  aggregated  approximately  only 
$2,000,000,  and  that  they  have  all  been  paid.  Such 
being  the  case,  there  will  remain  in  the  treasury  of  the 
United  States,  when  the  installments  of  the  indemnity 
are  fully  paid,  the  sum  of  about  twenty-two  millions  of 
dollars. 

What  is  to  be  done  with  this  larg^e  treasure  ?  It  is 
being  collected  by  the  Chinese  government  by  levying 
additional  burdens  upon  the  people,  already  oppressed 
with  heavy  taxation.  Its  exaction  is  increasing  the  bit- 
ter hostility  existing  against  foreigners.  Various  propo- 
sitions are  being  advanced  for  its  use  by  the  United 
States.    Similar  propositions  were  made  respecting  the 

Italy        26,617,005 

Japan 34,793,100 

Russia 130,371,120 

Other  powers 5,226,075 

The  entire  indemnities  aggregated,  say,  450,000,000  taels. 

1  1  The  Re-Shaping  of  the  Far  East,  Weale,  New  York,  1905,  183. 


380  THE  PRACTICE  OF  DIPLOMACY 

Japanese  indemnity,  but  Congress  decided  against  them 
all,  and  by  its  final  action  it  determined  that  such  a 
fund  could  not  be  properly  appropriated  to  pay  the 
military  expenses  of  the  expedition.  After  disturbing 
the  conscience  of  Congress  for  twenty  years,  the  money 
was  returned  to  Japan. 

The  public  press  has  reported  that  Secretary  Hay, 
whose  high  sense  of  justice  led  him  to  revolt  against 
the  exorbitant  demands  of  the  European  powers,  advised 
the  President  to  ask  Congress  to  return  to  China  the 
amount  in  the  treasury  and  to  release  that  government 
from  further  payments ;  but  it  further  reports  that,  in 
view  of  the  attitude  of  the  Chinese  people  on  the  boy- 
cott of  American  goods,  such  contemplated  action  may 
not  be  taken.  The  President  of  the  United  States  has 
stated  publicly  that  the  injustice  done  the  Chinese 
through  the  harsh  exclusion  laws  of  the  United  States 
was  the  cause  of  the  boycott.  An  acquittance  of  two 
wrongs  can  hardly  be  accomplished  by  the  commission 
of  a  third.  It  is  not  doubted  that  the  honorable  record 
which  the  United  States  has  made  for  fair  dealing  in 
the  matter  of  international  indemnities  will  in  this 
instance  be  maintained. 

The  task  set  for  this  treatise  has  been  completed,  so 
far  as  it  has  been  found  possible  within  the  compass  of 
a  moderate  volume.  The  attempt  to  develop  the  prac- 
tice of  diplomacy,  as  illustrated  in  the  foreign  relations 
of  the  United  States,  was  made  with  a  view  to  showing 
the  part  taken  therein  by  the  representatives  of  this  gov- 
ernment, and  the  influence  they  have  exercised  in  ele- 


INTERNATIONAL   CLAIMS  381 

vating  the  standard  of  that  practice.  When  our  country- 
declared  its  independence  and  sought  intercourse  with 
foreign  nations  the  standard  of  diplomacy  was  very  low. 
Even  in  time  of  peace  it  did  not  hesitate  to  make  use  of 
bribery,  espionage,  and  deliberate  deceit.  It  is  a  hope- 
ful evidence  of  the  progress  of  the  nations  that  no  self- 
respecting  government  to-day  would  countenance  such 
practices  in  its  foreign  intercourse.  This  narrative  has 
shown  the  part  taken  by  American  diplomatists  in  this 
reformation.  It  is  a  matter  of  just  pride  to  every  citizen 
of  the  United  States  that  his  government  and  its  repre- 
sentatives abroad  have  done  their  full  share  in  purifying 
diplomacy  and  making  it  stand  for  the  best  ideals  of 
mankind. 


BIBLIOGRAPHY 


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386  BIBLIOGRAPHY 

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INDEX 


INDEX 


Acceptability  of  envoys,  consultation 
as  to  ambassadors,  36-38 ;  not  usual 
as  to  ministers,  30. 

Adams,  Charles  Francis,  court  presen- 
tations irksome  to,  81 ;  on  use  of 
"United  States,"  88;  member  of 
Geneva  arbitration  tribunal,  341. 

Adams,  John,  at  London,  2 ;  favored 
special  embassies  only,  3 ;  on  superi- 
ority of  American  diplomatic  service, 
9 ;  balloting  for,  as  peace  commis- 
sioner, 45 ;  report  of  presentation 
audience  at  London,  65 ;  effect  of 
nominating  minister  without  consult- 
ing cabinet,  47  ;  on  salaries  of  dip- 
lomats, 92  ;  his  oratory  not  an  aid  to 
diplomacy,  122  ;  as  to  dress  at  court, 
13U ;  as  to  letters  of  recall,  177  ;  peace 
commissioner,  192  ;  consulted  Senate 
as  to  treaties,  272 ;  witness  before 
arbitration  commission,  292,  334. 

Adams,  John  Quincy,  rank  of,  in 
cabinet  of  Monroe,  question  raised, 
32  ;  comment  on  court  receptions,  64 ; 
comment  on  the  style  of  "  Notes," 
76  ;  on  salaries  of  diplomats,  93  ;  on 
qualifications  of  diplomat  (Bagot) 
105 ;  on  interviews  of  diplomats  with 
President,  106 ;  on  criticism  by  dip- 
lomats of  Congressional  discussions, 
110 ;  on  written  communications  only 
of  diplomats,  112;  on  presents  and 
decorations,  147, 149 ;  on  dismissal  of 
Jackson,  185  ;  peace  commissioner, 
193 ;  on  delay  of  Spain  in  ratifying 
treaty,  277 ;  on  Russian  minister's 
note  on  treaty  of  1824,  284. 

Addison,  Joseph,  his  account  in  Specta- 
tor of  Congress  of  Utrecht,  17. 

Addresses,  public,  diplomats  cautioned 
as  to,  119 ;  action  of  House  of  Repre- 
sentatives as  to,  by  Mr.  Bayard,  120; 
by  diplomats  at  Washington,  122  ; 
oratory  not  essential  to  diplomats, 
122. 
Adhesion  to  Treaties,  method  of,  281. 


Agreement,  significance  of  term  in  ar- 
bitration treaties,  327. 

Alabama  Claims,  settlement  by  Geneva 
arbitration,  340. 

Alaska,  modus  as  to  fur  seals,  324 ; 
boundary  of,  325  ;  boundary  settle- 
ment by  London  Tribunal,  339. 

Alexander  III,  Emperor  of  Russia, 
anecdote  of  Mr.  Foster's  presentation 
to,  00. 

Alternat  in  treaties,  defined,  251. 

Alverstone,  Lord,  president  of  Alaskan 
boundary  tribunal,  339. 

Ambassadors,  rank  of,  not  adopted  by 
United  States  until  1893,  21-23; 
reason  for,  21  ff.,  act  of  Congress  cre- 
ating, 23 ;  reasons  against,  23  ff. ; 
acceptance  of  ambassadors  from  Eu- 
ropean powers  and  results,  24 ;  am- 
bassador of  Mexico,  treatment  of,  25 ; 
remedy  for  embarrassment  of  rank, 
26 ;  relation  of  secretary  of  state  to, 
31,  Secretary  Bayard's  view,  22,  37 ; 
not  invested  with  greater  representa- 
tive capacity  than  ministers,  107. 

American,  the  term  applied  to  diplo- 
matic and  consular  offices,  legations 
etc.,  83. 

Amherst,  Lord,  ambassador  to  China, 
his  refusal  to  perform  the  kotou  or 
kow-tow,  08. 

Angell,  James  B.,  member  fishery  com- 
mission, 194. 

Appointment  of  diplomats,  chapter  iii ; 
nomination  of,  by  President  and  con- 
firmed by  Senate,  45  ;  Senate  cannot 
negative  grade  of  envoy,  46. 
Appropriations  for  diplomatic  service, 
first  by  Congress  in  lump  sum,  46 ; 
growth  of  service  indicated  by,  46. 
Arbitration,  treaties  on,  submitted  to 
Senate,  327 ;  historical  sketch  of, 
330 ;  treaty  of  1794,  first  provision  as 
to,  332  ;  with  Great  Britain,  3.J3-347  ; 
case  and  counter  case,  336  ;  decision 
of  King  of  Netherlands  not  accepted, 


392 


INDEX 


336;  Alabama  claims,  340;  fur 
seals,  345 ;  mediation,  349 ;  pro- 
jects for  general  plan  of,  350 ;  The 
Hague  Convention,  355  ;  treaties  of 
U.  S.  with  various  powers  as  to,  357  ; 
second  conference  at  The  Hague,  357  ; 
awards  reopened  for  fraud,  370. 

Armstrong,  General,  letter  from  Jeffer- 
son on  salary  as  minister  to  France, 
99 ;  as  to  Moustier,  183. 

Arthur,  Chester  A,  consulted  Senate  as 
to  treaties,  270. 

Ashburton,  Lord,  special  envoy  to  ne- 
gotiate treaty  of  1842,  247,  337. 

Asylum,  Right  of,  in  legations,  165  ; 
ease  of  American  legation  in  Chili, 
166 ;  case  of  Barrundia,  168. 

Attaches,  diplomatic,  abolished  by  Con- 
gress, 209;  military  and  naval,  210. 

Aulick,  Commodore,  mission  to  Japan, 
197. 

Bagot,  Sir  Charles,  minister  at  Wash- 
ington, Secretary  Adams'  estimate 
of,  105 ;  transfer  to  St.  Petersburg, 
114. 

Baldwin,  S.  E.,  on  delegating  treaty 
power  to  President,  315. 

Bancroft,  George,  his  protest  against 
ambassadorial  precedence,  22. 

Barrundia,  General,  case  of  asylum  on 
American  vessel,  168. 

Bayard,  James  A.,  on  peace  commis- 
sion, 193. 

Bayard,  Secretary  Thomas  F.,  his  ob- 
jection to  creating  ambassadorial 
rank,  22 ;  consulting  as  to  accepta- 
bility of  ministers,  36  ;  on  rejection 
of  Mr.  Keiley  as  minister  to  Austria, 
42;  on  use  of  "United  States,"  88 ; 
public  addresses  in  England,  action 
of  House  of  Representatives  as  to, 
120  ;  on  court  dress,  137  ;  on  right  of 
asylum,  169;  as  to  dismissal  of  Sack- 
ville-West,  187 ;  on  indemnity  for 
riots,  366 ;  not  to  enforce  unjust 
award,  371. 

Bearer  of  Dispatches,  growing  disuse 
of,  212. 

Benton,  Thomas  H.,  on  use  of  "  United 
States,"  88. 

Berckel,  P.  J.,  van,  medal  and  chain 
presented  by  United  States,  142. 

Bering  Sea  Arbitration,  precedence 
regulated  by  alphabetical  order,  20. 

Bernard,  Professor  M.,  on  art  of  diplo- 
macy, 103. 

Bismarck,    Prince,    on    ambassadorial 


representation,  108;  refuses  resolu- 
tions of  House  of  Representatives  on 
death  of  Lasker,  117;  recognized 
right  of  diplomats  to  free  communi- 
cation in  war,  173 ;  revelations  by, 
191. 

Blaine,  Secretary  James  G.,  on  use  of 
"  United  States,"  88 ;  on  Barrundia 
case,  169  ;  as  to  recall  of  Egan,  181 ; 
on  fur-seal  question,  345  ;  mediation 
between  Chili  and  Peru,  350 ;  on  ar- 
bitration by  American  States,  353 ; 
on  indemnity  for  riots,  367. 

Blair,  H.  W.,  rejection  as  minister  to 
China,  43. 

Blount,  J.  H.,  commissioner  to  Hawaii, 
199. 

Brandt,  von,  German  minister  to  China, 
marriage  to  American,  128. 

Brazil,  ambassador  from,  received  by 
United  States,  28. 

Bright,  John,  as  to  utility  of  diplomatic 
service,  5. 

Buchanan,  James,  trouble  as  to  court 
dress  at  London,  135 ;  consulted 
Senate  as  to  treaties,  269,  274. 

Burlingame,  Anson,  rejection  as  min- 
ister to  Austria,  39 ;  accepted  at 
Washington  as  Chinese  envoy,  49. 

Burr,  Aaron,  conspiracy  with  British 
and  Spanish  ministers,  160. 

Butler,  Charles  Henry,  treatise  on 
treaty-making  power,  297. 

Calhoun,  John  C,  on  use  of  "  United 
States,"  87  ;  declined  mission  to  Eu- 
rope on  account  of  salary,  98 ;  on 
treaty-making  power,  297. 

Calvo,  publicist,  on  ambassadorial  re- 
presentation, 107. 

Canning,  George,  prescribed  written 
communication  only  to  American 
minister,  112. 

Capitulations,  defined,  245 ;  extract 
from  that  of  1740,  253. 

Cartel,  defined,  246. 

Carter,  James  C,  on  use  of  "  United 
States,"  88. 

Castlereagh,  Lord,  presents  received  at 
foreign  courts,  141. 

Catacazy,  M.,  his  recall  as  Russian 
minister,  187. 

Ceremonious  Letters,  President  Harri- 
son's comment  on,  126 ;  Secretary 
Seward  on,  127. 

Chamberlain,  Joseph,  member  fishery 
commission,  194. 

China,   would   ambassadors    from,   be 


INDEX 


393 


received  by  Great  Powers  ?  27 ;  Ma- 
cartney embassy  to,  cost  of,  91 ; 
Japanese  embassy  to,  55 ;  Amherst 
embassy  to,  68 ;  Ward's  refusal  to 
kow-tow,  09;  Blair  rejected  as  min- 
ister to,  44 ;  student  interpreters  in 
legation,  211;  U.  iS.  Court  in,  283 ; 
negotiations  with  Japan  in  1895,  245  ; 
interpretation  of  treaty  of  1903, 
English  text,  294;  effect  of  legis- 
lation on  exclusion  treaty,  307 ;  Boxer 
protocol ;  318  ;  indemnity  of  1858  re- 
turned, 374 ;  Boxer  indemnity,  378. 

Choate,  Joseph  H.,  on  use  of  "  United 
States,"  88. 

Cipher,  used  by  Department  of  State, 
215. 

Citizens  of  United  States,  usually  not 
accepted  at  Washington  in  diplo- 
matic capacity,  49 ;  exceptions  in 
cases  of  Burlingame  and  Camacho, 
49. 

Claims,  executive  agreements  for  arbi- 
tration of  private,  317  ;  international, 
chapter  xviii ;  contractual,  not  en- 
forceable, 358 ;  Drago  note,  362 ; 
rules  as  to  responsibility  of  govern- 
ments for,  366 ;  of  foreigners  pre- 
sented to  Department  of  State,  366  ; 
commissioners  for  adjustment  of, 
367  ;  adjudicated,  set  aside  for  fraud, 
370. 

Clarendon,  Lord,  on  art  of  diplomacy, 
103. 

Clay,  Henry,  on  use  of  "  United  States," 
86 ;  on  salaries  of  diplomats,  96 ; 
dress  at  Ghent  conference,  131 ; 
peace  commissioner,  193  ;  position  as 
to  confirmation  of  commissioners  by 
Senate,  202. 

Clayton,  Secretary  John  M.,  on  Bulwer's 
declaration  as  to  Canal  treaty,  285. 

Clayton-Bulwer  treaty,  Bulwer's  decla- 
ration as  to,  285  ;  changed  conditions 
as  to  termination  of,  303. 

Cleveland,  Grover,  on  use  of  "United 
States,"  88;  on  ownership  of  lega- 
tion residences  by  government,  100 ; 
promulgates  rules  for  admission  to 
consular  service,  240;  withdrawing 
treaties  from  Senate,  263  ;  seizure  of 
sealing  vessels,  .345. 

Cobden,  Richard,  as  to  utility  of  diplo- 
matic service,  5. 

Compacts  other  than  treaties,  chapter 
xvi. 

Concordat,  defined,  245. 

Confirmation  by  Senate,  of  diplomatic 


representatives,  45 ;  result  of  failure 
of,  appointed  during  recess,  47  ;  cases 
of  Gallatin  and  Van  Buren,  47  ;  prac- 
tice as  to  special  envoys  and  diplo- 
matic commissioners,  201,  203;  ac- 
tion of  Senate  in  case  of  Schufeldt, 
202  ;   of  consular  officers,  218. 

Congress  of  United  States,  considera- 
tion of  utility  of  diplomatic  service, 
4,  9 ;  cause  of  failure  to  provide  a 
permanent  service,  12  ;  failure  to  in- 
crease diplomatic  salaries,  96. 

Consular  Service  of  the  United  States, 
chapter  xi ;  the  officials  in,  217  ;  how 
appointed,  218 ;  bond  given,  219 ;  ex- 
equatur, 220 ;  duties,  222,  ff. ;  ex- 
territoriality, 230 ;  United  States 
Court  for  China,  233 ;  immunities, 
237  ;  reform  of,  239  ;  action  of  Presi- 
dents Cleveland  and  McKinley,  240 ; 
President  Roosevelt's  new  rules,  241. 

Controversies,  order  of  Department  of 
State  respecting,  among  American 
diplomats,  83. 

Courtesies  of  Custom  Houses,  usually 
accorded  diplomats,  53. 

Crawford,  Wm.  H.,  raised  question  as 
to  rank  in  cabinet  of  Monroe,  33. 

Credentials  of  envoys,  or  letter  of  cre- 
dence, signed  by  President,  addressed 
to  sovereign,  50  ;  copy  of  first  letter 
to  Franklin,  51 ;  European  practice 
as  to  new  credentials  on  change  of 
ruler  not  followed  by  United  States, 
125,  127 ;  Mr.  Denby's,  126. 

Croix,  St.,  River,  involved  in  boundary 
question,  333. 

Cuba,  conference  at  Ostend  for  acqui- 
sition of,  197 ;  action  under  Piatt 
amendment,  320. 

Curtis,  George  Wm.,  declined  mission 
on  account  of  salary,  98. 

Cushing,  Caleb,  his  opinion  as  to  prece- 
dence of  envoys  at  Madrid,  714; 
special  envoy  to  Columbia,  197 ; 
counsel,  Geneva  arbitration  tribunal, 
341. 

Custom  Houses.  See  Courtesies  of  Cus- 
tom Houses. 

Cutting,  A.  K.,  special  commissioner  to 
Mexico,  200. 

Dallas,  George  M.,  trouble  as  to  dress  at 
English  Court,  140 ;  on  attaches, 
209 ;  on  power  of  Parliament  over 
treaties,  289. 

Davie,  W.  R.,  commissioner  to  France, 
193. 


J 


394 


INDEX 


Davis,  C.  K.,  Spanish  peace  commis- 
sioner, 193. 

Davis,  J.  C.  Bancroft,  agent  of  U.  S. 
Geneva  arbitration  tribunal,  341. 

Day,  William  K.,  Spanish  peace  com- 
missioner, 193. 

Deans,  Silas,  a  commissioner  to  France, 
192. 

Declaration  of  War,  245. 

Decorations.    See  Orders. 

Denby,  Charles,  credential  letters  not 
delivered  for  six  years,  126 ;  on  mar- 
riage of  German  minister,  128. 

D'Estrades,  French  ambassador,  his 
reception  in  Holland,  5.5. 

Diplomatic    Corps    of    United    States, 
composition   of,    34 ;    ministers    ac- 
credited to  more  than  one  State,  34 
special    commissioners   and   agents, 
192 ;    peace  commissions,  192,  193 
special  envoys,  195 ;  secretaries,  206 
military   and    naval   attaches,   210 
student    interpreters   in   China   and 
Japan,   211 ;    bearer  of  dispatches, 
212. 

Diplomatic  Correspondence.  See  For- 
eign Relations. 

Diplomatic  service,  utility  of,  1-14; 
became  permanent  in  15th  century, 
2 ;  have  modern  conditions  made 
unnecessary  ?  3 ;  cost  of,  to  United 
States,  7 ;  not  a  permanent  career 
in  United  States,  7  ;  special  envoys 
and  commissioners,  195 ;  special  en- 
voys disturb  harmony,  196 ;  quasi- 
diplomatic  commissions,  198 ;  rela- 
tive advantages  of  permanent  and 
irregular  systems,  8,  14 ;  United 
States  executive  order  for  admission 
of  secretaries  to,  10 ;  improvement 
suggested  as  to  correspondence  with 
Department  of  State,  90 ;  diplomacy 
proper  characteristics  of,  103  ;  special 
commissioners  and  agents,  192  ;  com- 
missioners take  rank  in  order  named 
by  President,  194  ;  enjoy  immunity 
of  other  diplomats,  194  ;  pay  of  fed- 
eral officers  in,  204 ;  duties  of  secre- 
taries, 206  ;  attaches  not  allowed  in, 
208 ;  military  and  naval  attaches, 
210 ;  student  interpreters  in  China 
and  Japan,  211 ;  published  diplomatic 
list,  211;  bearer  of  dispatches,  212; 
the  cipher,  213. 

Disarmament  on  Great  Lakes,  Presi- 
dent consulted  Senate  as  to,  273,  dis- 
regard of  certain  provisions,  302 ; 
action  on  by  Senate,  319. 


Dismissal  of  Envoys.  See  Termination 
of  Missions. 

Dispatches,  diplomatic  meaning  of 
term,  75. 

Domingo,  San,  Grant's  commission  to, 
198 ;  treaty  and  modus  vivendi  with, 
326 ;  President  Roosevelt,  364 ;  Sen- 
ator Rayner  on  treaty,  365. 

Drago,  Luis  M.,  note  on  contractual 
claims,  362, 

Dress  at  Court,  regulations  of  United 
States  as  to,  130-140. 

Dufferin,  Lord,  one  of  the  leading 
British  diplomatists,  8;  salary  as 
British  ambassador  at  Paris,  97. 

Duties  of  a  Diplomat,  an  American,  to 
his  own  government,  chapter  v,  re- 
ceipt of  archives  and  property,  75; 
contained  in  Printed  Instructions,  75 ; 
an  American,  to  the  foreign  govern- 
ment, chapter  vi ;  intercourse  with 
other  departments  of  government, 
106;  cannot  criticise  Congress,  110; 
to  cultivate  social  relations,  115 ;  not 
to  correspond  with  newspapers,  119 ; 
cautioned  as  to  public  addresses,  119  ; 
should  reside  at  Capitol,  122 ;  joint 
action  with  colleagues  to  be  avoided, 
123  ;  joint  action  at  Washington  dis- 
couraged, 124 ;  American  diplomat 
may  act  for  other  governments,  128. 

Edmunds,  George  F.,  on  use  of  "  United 
States,"  88. 

Egan,  Patrick,  asylum  afforded  Chilean 
refugees,  167 ;  recall  requested  by 
Chili,  181. 

Elgin,  Lord,  special  envoy  for  Cana- 
dian reciprocity  treaty,  247. 

Ellsworth,  Chief  Justice,  commissioner 
to  France,  193,  204. 

Embassies,  their  ancient  origin,  2. 

Erving,  George  W.,  special  envoy  to 
Denmark,  197. 

Evarts,  William  M.,  on  use  of  "  United 
States,"  88 ;  private  agent  to  Europe, 
200 ;  on  Clayton-Bulwer  treaty,  305  ; 
on  Chinese  exclusion  legislation,  308 ; 
counsel,  Geneva  arbitration  tribu- 
nal, 341 ;  on  indemnity  for  riots, 
366. 

Extradition,  duties  of  American  en- 
voys connected  with,  78 ;  growth  of 
extradition  treaties,  78. 

Female  Diplomats,  in  former  times,  211. 

Fish,   Secretary  Hamilton,  on  use  of 

"  United  States,"  88 ;  member  joint 


INDEX 


395 


commission,    193 ;     advocated  court 
for  international  claims,  308. 

Fisheries,  power  to  regulate  on  Great 
Lakes,  823. 

Foreign  Relations,  a  volume  published 
amiually  by  Department  of  State, 
116,  118. 

Fox,  G.  v.,  mission  to  Russia,  198. 

France,  iSoul(3,  not  allowed  to  stay  in, 
54 :  two  peace  commissions  to,  193 
recognized  in  1803  the  alternat,  251 
quotation  from  treaty  with  Persia, 
257 ;   consular  treaty  with,  question 
as  to,  290 ;  treaty  of  U.  S.  with  Mada- 
gascar,  298 ;     treaty  of  alliance  of 
1778, 301 ;  treaty  of  1831, 3 10 ;  mem- 
ber fur-seal  arbitration,  346. 

Franklin,  Benjamin,  distinguished  for 
frankness,  simplicity  and  humane 
views,  1 ;  at  Paris,  2  ;  copy  of  letter 
of  credence  to  King  of  France,  51 ; 
his  cultivation  of  social  relations, 
115  ;  not  an  orator,  122  ;  dress  worn 
at  court,  130,  134,  138;  on  French 
commission,  192. 

Freliughuysen,  Secretary  T.  F.,  as  to 
utility  of  diplomatic  service,  4,  6 ; 
objection  to  ambassadorial  rank,  22 ; 
on  use  of  "  United  States,"  88. 

Frye,  William  P.,  Spanish  peace  com- 
missioner, 193. 

Full  powers,  to  negotiate  treaties,  247. 

Gallatin,  Albert,  non-confirmation  as 
peace  commissioner  at  St.  Peters- 
burg, 47  ;  arrest  of  his  coachman, 
160 ;  on  peace  commission,  193 ; 
special  envoy  to  Great  Britain  in 
1818,  196. 

Genet,  E.  C,  French  minister,  his  re- 
call, 179. 

Geneva  Tribunal,  for  settlement  of 
Alabama  claims,  341 ;  procedure  of, 
341. 

Germany,  rule  of  foreign  office  against 
its  diplomats  marrying  foreign  wives, 
128  ;  visit  of  Prince  Henry,  152  ;  Em- 
peror on  San  Juan  dispute,  338. 

Gerry,  Elbridge,  commissioner  to 
France,  193. 

Grant,  Ulysses  S.,  on  use  of  "  United 
States,"  88 ;  consulted  Senate  as  to 
treaties,  270,  274. 

Gray,  George,  Spanish  peace  commis- 
sioner, 193. 

Great  Britain,  investigation  of  diplo- 
matic service  by  Parliamentary  Com- 
mittee, 5 ;  John  Adams'  reception  by 


George  III,  extradition  treaties  with, 
78  ;  court  rule  as  to  diplomatic  dress, 
134,  140;  Adams'  farewell  to  King 
George,  178 ;  dismissal  of  Sackville- 
West,  187;  up  to  181.")  refused  the 
alternate,  251 ;  ratification  of  trea- 
ties by  sovereign,  262 ;  control  of 
Parliament  over  treaties,  289 ;  treaty 
of  1871  with,  299  ;  the  treaty  of  1815 
and  St.  Helena,  301 ;  disarmament  on 
Great  Lakes,  302  ;  Clayton-Bulwer 
treaty,  303 ;  as  to  treaties  of  peace, 
305 ;  unratified  arbitration  treaties, 
315 ;  arrangement  between  Maine  and 
New  Brunswick,  322  ;  modus  Vivendi 
with,  324 ;  treaties  with,  provisions 
for  arbitration,  332 ;  enforcing  claims 
against  Nicaragua,  361 ;  against  Ven- 
ezuela, 3oi. 

Gresham,  Secretary  Walter  Q.,  on  use 
of  "  United  States,"  88. 

Grotius,  Hugo,  first  gave  shape  to  in- 
ternational law,  3. 

Hag^e  Peace  Conference,  1899,  pre- 
cedence regulated  by  alphabetical 
order,  20  ;  peace  treaty,  effect  of  rati- 
fication by  the  Senate,  315 ;  two 
eases  submitted  by  U.S.,  316;  sketch 
of  treaty,  355. 

Hale,  E.  E.,  on  Franklin's  dress  at 
French  Court,  139. 

Hamilton,  Alexander,  on  use  of  "United 
States,"  86,  88 ;  on  treaty  ratification, 
278  ;  on  contractual  claims,  363. 

Hamlin,  Hannibal,  his  reception  at  Ma- 
drid, 59. 

Harrison,  Benj.,  as  to  utility  of  diplo- 
matic service,  4  ;  on  use  of  "  United 
States,"  88 ;  comment  on  ceremoni- 
ous letters,  126. 

Hay,  Secretary  John,  enunciation  of 
Golden  Rule  in  diplomacy,  1,  104 ; 
criticism  as  to  ex-congressmen,  12  ;  as 
to  protection  of  American  citizens 
abroad,  79  ;  on  use  of  ' '  United 
States,"  88 ;  sends  note  of  Chinese 
minister  to  Congress,  111;  treaty  for 
interoceanic  canal,  305  ;  favored  re- 
turn of  Boxer  indemnity  to  China,  379. 

Hay-Pauncef  ote  treaty,  its  termination 
of  Clayton-Bulwer  treaty,  286. 

Henry  of  Germany,  Prince,  presents  to 
American  officials,  152. 

Hise,  Elijah,  his  treaty  with  Nicaragua 
withheld  from  Senate,  263. 

Hoar,  George  F.,  declined  mission  on 
account  of  salary,  98. 


396 


INDEX 


House  of  Representatives,  action  as  to 

treaty  legislation,  309. 
Hufifcut,  Professor,  on  use  of  "  United 

States,"  88. 
Hughes,  Archbishop,  private  agent  to 

Europe  in  1861,  200. 

Immunities  of  diplomats,  chapter  viii ; 
subject  only  to  the  law  of  their  own 
country,  159  ;  as  witnesses  in  court, 
161 ;  exemption  from  arrest,  162 ; 
protected  from  insult,  164 ;  foreign 
flag  to  be  respected,  164 ;  laws  not 
put  in  effect  by  note  only,  164 ;  exter- 
ritorial character  of  legation,  165  ; 
right  of  asylum,  165  ;  Wheaton  on 
detention  of  ministers'  property  for 
debts,  170;  printed  instructions  on 
debts,  171 ;  property  exempt  from 
taxation,  171 ;  freedom  of  religious 
worship,  171 ;  customs  courtesies, 
172  ;  free  communication  in  war,  173  ; 
right  to  pass  through  blockade,  174 ; 
extended  to  diplomatic  commission- 
ers, 195. 

Information  bureaus,  legations  not  such 
for  traveling  Americans,  80. 

Instructions,  diplomatic,  meaning  of 
term,  75. 

International  law,  its  recent  origin,  2 ; 
Grotius  first  gave  it  shape,  3. 

Interpreters,  student,  for  China  and 
Japan,  211. 

Introducer  of  ambassadors.  See  Master 
of  Ceremonies. 

Is  or  Are  ?  the  proper  use  of,  applied 
to  the  phrase  "  United  States,"  dis- 
cussion of,  83-90. 

Jackson,  Andrew,  circular  as  to  court 
dress,  132 ;  circular  as  to  presents, 
149 ;  action  on  award  of  King  of 
Netherlands,  337. 

Jackson,  H.  R.,  cause  of  resignation  as 
minister  to  Mexico,  200. 

Jackson,  Mr.,  his  dismissal  as  British 
minister,  185. 

Japan,  recent  embassy  to  Peking,  55 ; 
Perry's  mission  to,  197  ;  student  in- 
terpreters in  embassy,  211 ;  exchange 
of  ratifications  of  treaty  with  Russia, 
281. 

Japanese  embassy  to  China,  its  recep- 
tion at  Peking,  55. 

Jay,  John,  at  Madrid,  2  ;  on  salaries  of 
diplomats,  92  ;  instruction  of  Wash- 
ington to,  on  characteristics  of  diplo- 
macy, 104;    report  as  to  following 


the  court,  123 ;  on  peace  commis- 
sion, 192  ;  special  envoy  to  London, 
195  ;  had  four  full  powers,  247  ;  pay 
as  special  envoy  while  Chief  Justice, 
204  ;  on  treaties  in  conflict  with  laws, 
290  ;  witness  before  arbitration  com- 
mission as  to  treaty  1783,  292,  334. 

Jefferson,  Thomas,  at  Paris,  2 ;  on  use 
of  "United  States,"  86,  88;  on  sal- 
aries of  diplomats,  92,  99 ;  orders 
medal  and  chain  for  foreign  min- 
isters, 142 ;  would  limit  absence 
abroad,  176 ;  on  recall  of  Moustier, 
184 ;  on  French  commission,  192  ;  on 
peace  commission,  192  ;  withholding 
treaty  of  London  of  1806  from  Sen- 
ate, 262  ;  consulted  Senate  on  the 
purchase  of  Louisiana,  272 ;  on  treaty 
ratification,  278. 

Johnson,  Andrew,  consulted  Senate  as 
to  treaty,  270. 

Joint  action  of  diplomats.  See  Duties 
of  Diplomats. 

Jones,  John  Paul,  permission  by  Con- 
tinental Congress  to  receive  decora- 
tion from  France,  146. 

Keiley,  A.  M.,  rejection  as  minister  to 
Italy  and  Austria,  40. 

King,  Rufus,  Minister  at  London,  con- 
sulted as  to  British  minister  to 
United  States,  37 ;  representations 
made  to,  by  claims  commissioners, 
194 ;  nominated  special  envoy  to 
Russia,  272. 

Kotou  or  kow-tow,  Chinese  audience 
ceremony,  69 ;  question  raised  in  Ger- 
many respecting  it,  69. 

Lafayette,  Marquis  de,  interposition  in 
case  of  Moustier,  184. 

Language  of  diplomacy,  124. 

Lasker,  Edward,  resolutions  of  House 
of  Representatives  on  death  of,  not 
received  by  Bismarck,  117. 

Laurens,  Henry,  on  peace  commission, 
192. 

Lawrence,  Abbott,  on  salaries  of  dip- 
lomats, 94. 

Lawrence,  T.  J.,  on  ambassadorial  re- 
presentation, 108;  on  Clayton-Bul- 
wer  treaty,  304. 

Leave  of  absence,  of  American  diplo- 
mats, 82. 

Lee,  Arthur,  on  commission  to  France, 
192. 

Legation  residences  or  offices,  not  usu- 
ally owned  by  American  Government, 


INDEX 


397 


72 ;  owned  in  China,  Japan,  Korea, 
and  Siam,  72  ;  list  of,  owned  by  for- 
eign governments  in  Washington,  72 ; 
those  of  United  States  should  be 
owned  by  government,  100. 

Legion  of  Honor,  French,  suggested 
amendment  of  United  States  Consti- 
tution, 148 ;  French  editor's  criti- 
cism of,  15;3. 

Letter  of  credence.  See  Credentials  of 
Envoys. 

Li  Hung  Chang,  his  retinue  to  Japan, 
55  ;  his  negotiation,  248. 

Lincoln,  Abraham,  on  use  of  "  United 
States,"  88  ;  letters  of  condolence  on 
death  of,  127 ;  consulted  Senate  as 
to  treaties,  269. 

Livingston,  Secretary  Edward,  on  sal- 
aries of  diplomats,  95. 

Livingston,  Robert  R.,  salary  as  min- 
ister to  France,  99. 

Louisiana,  treaty  action  of  France  and 
Spain  as  to,  293  ;  decision  of  Supreme 
Court  as  to  cession  of,  295. 

Lowell,  James  Russell,  burdens  of 
court  presentation  at  London,  81 ; 
anecdote  as  to  court  dress  and  gra- 
tuities, 157. 

Luzerne,  Marquis  de  la,  medal  and 
chain  presented  by  United  States, 
141. 

Macartney  embassy  to  China,  cost  of, 
91. 

Manifesto,  defined,  246. 

Mann,  A.  Dudley,  private  agent  to 
Hungary,  199. 

Marcy,  Secretary  William  L.,  action 
against  ambassadorial  rank,  22 ;  on 
use  of  "  United  States,"  88 ;  his  cir- 
cular as  to  court  dress,  133  ;  its  effect 
in  Europe,  134 ;  on  contractual  claims, 
366. 

Maria  Theresa,  arrangement  of  mar- 
riage with  Louis  XIV,  18. 

Marriages  abroad,  conditions  under 
which  celebrated  in  American  lega- 
tions, 80. 

Marshall,  John,  commissioner  to  France, 
193  ;  on  division  of  powers  of  gov- 
ernment, 313. 

Martens,  publicist,  on  ambassadorial 
representation,  108. 

Mason,  James  Y.,  action  at  Paris  as 
to  court  dress,  135. 

Master  of  Ceremonies,  officer  at  Euro- 
pean courts,  his  duties,  57 ;  absence 
of,  felt  at  Washington,  57. 


Mcllvaine,  Bishop,  private  agent  to 
Europe  in  1861,  200. 

McKinley,  President  William,  asked 
Turkey  to  create  embassy,  29 ;  on  use 
of  "  United  States,"  88 ;  promulgates 
rules  for  admission  to  consular  ser- 
vice, 240 ;  reciprocity  provision  of 
revenue  law,  314. 

Mediation,  in  international  disputes, 
349 ;  Napoleon  in  Civil  War,  449 ; 
U.  S.  in  war  of  Spain  and  American 
States,  350 ;  in  Chili-Peru  war,  350. 

Mexican  Ambassador,  first  received  at 
Washington,  treatment  by  European 
ambassadors,  25-27. 

Mexico,  treatment  of  first  ambassador 
to  U.  S.,  25 ;  protocol  of  treaty  of 
1848  with,  285  ;  reciprocity  treaty  of 
1883,  289 ;  provision  in  treaty  of  1848 
as  to  war,  306 ;  Pious  Fund  claim, 
316;  frontier  crossing,  321 ;  LaAbra 
and  Weil  awards  set  aside,  374 ;  in- 
tervention of  England,  France,  and 
Spain,  360. 

Modus  Vivendi,  defined,  324;  with 
Great  Britain  as  to  fur  seals,  324; 
Alaskan  Boundary,  325 ;  San  Do- 
mingo, 326. 

Monroe  Doctrine,  relation  to  collection 
of  claims  by  force,  363. 

Monroe,  James,  his  presentation  audi- 
ence at  Paris,  68  ;  on  salaries  of  dip- 
lomats, 95 ;  his  recall  from  France, 
182 ;  his  vindication,  190 ;  special 
envoy  to  France,  195 ;  consulted  Sen- 
ate as  to  disarmament  on  Lakes, 
273. 

Moore,  John  B.,  use  of  "  United  States," 
88  ;  on  ambassadorial  representation, 
109  ;  on  action  of  Senate  on  arbitra- 
tion treaties,  327 ;  author  History 
and  Digest  of  Arbitration,  348. 

Morgan,  John  T.,  report  as  to  confirma- 
tion of  commissioners  by  Senate,  203. 

Morris,  Gouverneur,  at  London,  2,  36 ; 
his  recall  from  France,  1 79. 

Motley,  John  L.,  on  use  of  "United 
States,"  88 ;  his  recall  as  minister, 
182. 

Moustier,  Count,  French  minister,  de- 
nied correspondence  with  President, 
107 ;  medal  and  chain  presented  by 
United  States,  142  ;  his  recall,  183. 

Muscat,  Imaum  of,  presents  to  Presi- 
dent, 149. 

Napier,  Lord,  minister  in  Washington, 
interview  with  President,  109. 


398 


INDEX 


Napoleon  I,  his  extreme  demands  for 
precedence,  19. 

Napoleon  III,  interruption  of  transit 
of  Minister  SouM,  53  ;  as  to  concor- 
dat with  the  Pope,  300;  mediation 
in  civil  war,  349. 

Naturalization,  abuse  of,  and  trouble 
occasioned  thereby  to  American  en- 
voys, 77 ;  new  law  as  to,  78. 

Naval  officers,  their  relation  to  Ameri- 
can ministers  abroad,  82. 

Nelson,  Justice,  member  joint  commis- 
sion, 193. 

Netherlands,  treaty  with,  affected  by 
changed  conditions,  299;  King  of, 
arbitrator,  33-5. 

Newspapers,  diplomats  not  to  corre- 
spond with,  119. 

Notes,  diplomatic  meaning  of  term,  75. 

Nuncios.    See  Papal  Nuncios. 

Olney,  Richard,  on  use  of  "  United 
States,"  88 ;  negotiates  arbitration 
treaty,  354. 

Orders,  Constitution  prohibits  receipt 
of,  by  officials,  144 ;  attempted 
amendment  extending  prohibition  to 
citizens,  148 ;  Story  on,  149  ;  Printed 
Instructions  as  to,  150  ;  by  Emperor 
of  Turkey  to  Americans,  152. 

Ostend,  conference  at,  by  American 
ministers,  197. 

Outfit  allowance  abolished  because  of 
abuse,  52. 

Palmerston,  Lord,  as  to  utility  of  dip- 
lomatic service,  5 ;  on  salaries  of 
diplomats,  96;  on  social  duties,  115. 

Papal  Nuncios,  rank  fixed  by  Congress 
of  Vienna,  26  ;  recognized  by  Ameri- 
can diplomats,  27. 

Paris,  Conference  of  1856,  representa- 
tives seated  in  alphabetical  order,  20. 

Paris,  Four  Rules  of,  281. 

Parliament  of  Great  Britain,  consider- 
ation of  utility  of  diplomatic  service, 
5  ;  as  to  power  over  treaties,  290. 

Passaraaquoddy  Bay  involved  in 
Boundary  question,  334. 

Passports,  when  issued  by  American 
envoys,  76 ;  abuse  of,  and  of  natu- 
ralization, 77. 

Pauncefote,  Lord,  a  leading  British 
diplomatist,  8. 

Pay  of  Federal  officers  while  acting  in 
diplomatic  capacity,  204. 

Perry,  Commodore,  mission  to  Japan, 
197 ;  presents  in  signing  treaty,  259. 


Persona  grata,  practice  of  consulting 
government  as  to  new  minister,  36; 
Mr.  Keiley  not  such  to  Italy  nor 
Austria,  41 ;  Mr.  Blair  to  China,  44 ; 
duty  of  envoy  to  make  himself,  104. 

Phelps,  Edward  J.,  on  use  of  "  United 
States,"  88 ;  as  to  dismissal  of  Sack- 
ville-West,  188. 

Pinckney,  C.  C,  rejection  as  minister 
to  France,  39 ;  author  of  Constitu- 
tional clause  as  to  orders  and  presents, 
144 ;  peace  commissioner,  193. 

Pinckney,  Thomas,  at  Madrid,  2  ;  Con- 
gress disapproves  receipt  of  Spanish 
present,  144. 

Pinkney,  William,  on  salaries  of  dij)- 
lomats,  93 ;  Canning  prescribes  com- 
munication by  writing  only,  112; 
commissioner  under  Jay  treaty,  194 ; 
special  envoy  to  Great  Britain,  196. 

Polk,  James  K.,  on  consulting  Senate 
as  to  treaties,  268. 

Pope  of  Rome,  early  precedence  among 
sovereigns,  16  ;  effort  to  fix  rank  of 
diplomats,  16. 

Postal  conventions,  authority  given 
executive  to  negotiate,  313. 

Precedence  of  envoys,  of  same  rank, 
regulated  by  date  of  presentation  of 
credentials,  70 ;  case  of  English  and 
French  ambassadors  at  Washington, 
70. 

Preliminaries  of  peace  defined,  245. 

Presentations  at  Court  a  vexatious 
subject  for  certain  embassies,  81. 

Presents,  practice  of  foreign  courts 
as  to  conferring  them,  141  ;  early 
practice  of  United  States,  141-143 ; 
American  officials  prohibited  by 
Constitution  from  receiving,  144 ; 
case  of  Thomas  Pinckney,  144 ;  of 
Imaum  of  Muscat,  149 ;  of  Emperor 
of  Turkey,  152 ;  allowed  as  to  gra- 
tuities to  servants,  156. 

President,  of  the  United  States,  nom- 
inates envoys,  45 ;  intercourse  of 
diplomats  with,  106 ;  Moustier  and 
Genet  denied  correspondence  with, 
107  ;  may  withhold  treaty  from  Sen- 
ate, 262  ;  medium  of  communication 
with  foreign  powers,  263  ;  may  de- 
cline to  ratify,  279  ;  delegation  of 
legislative  duties  to,  chapter  xiv ; 
has  acted  as  arbitrator,  349. 

Printed  Instructions,  furnished  by 
Department  of  State  to  envoys,  52, 
75  ;  on  publication  of  official  papers, 
115 ;  as  to  correspondence  with  news- 


INDEX 


399 


papers  and  public  addresses,  119; 
remind  envoys  to  reside  at  the  Capi- 
tal, l-!3 ;  as  to  court  dress,  137 ;  as 
to  presents  and  orders,  150 ;  diplo- 
mats as  witnesses  in  court,  162  ;  on 
debts,  171  ;  as  to  duties  of  secreta- 
ries, 20G. 

Protection  of  citizens,  important  duty 
of  American  representatives  abroad, 
79 ;  Secretary  Hay  on,  79. 

Protocol,  defined,  246 ;  as  affecting 
treaties,  284,  318. 

Putnam,  Judge,  member  fishery  com- 
mission, 194. 

Randolph,  John,  abuse  of  outfit  and 
infit  allowances,  52  ;  delivered  letter 
of  recall  to  Russian  ambassador  in 
London,  179. 

Rank  of  Ambassadors.  See  Ambassadors. 

Rank  of  diplomatic  representatives, 
chapter  ii ;  basis  of  claim  of  nation, 
for,  15. 

Rayner,  Isidor,  speech  in  Senate  on 
San  Domingo  Treaty,  365. 

Recall  for  cause.  See  Termination  of 
Missions. 

Recall,  letter  of,  delivered  to  head  of 
State,  177. 

Reception  of  envoys,  chapter  iv,  arrival 
at  post  and  first  duty,  56  ;  instructed 
by  master  of  ceremonies,  57  ;  manner 
of,  58  ff ;  of  recent  American  ambas- 
sadors, 61 ;  form  observed  in  Wash- 
ington, 63. 

Reciprocity  of  representation  usual, 
but  not  always  required,  36. 

Red  Cross  Convention,  adhesion  of 
United  States  to,  282. 

Regensberg,  Diet  of.  rule  of  precedence 
of  ambassadors  established,  17. 

Reid,  Whitelaw,  on  use  of  "  United 
States,"  88  ;  Spanish  peace  commis- 
sioner, 193. 

Rejection  of  envoys,  governments  ex- 
ercise right,  38  ;  rule  at  British  court, 
38;  case  of  C.  C  Pinckney,  39; 
case  of  Anson  Burlingame,  39  ;  case 
of  A.  M.  KeUey,  40 ;  case  of  H.  W. 
Blair,  43. 

Residences  of  envoys.  See  Legation 
Residences. 

Rives,  William  C,  on  salaries  of  diplo- 
mats, 05. 

Roberts,  Edmund,  his  treaty  presents, 
259. 

Romanzoff ,  Count,  action  as  to  presents 
received,  141. 


Roosevelt,  Theodore,  asks  Turkey  to 
create  embassy,  29  ;  dispatches  fleet  to 
Turkish  waters,  31 ;  on  use  of  "United 
States,"  88;  promulgates  rules  for 
admission  to  consular  service,  241 ;  on 
San  Domingo,  364 ;  on  Chinese  boy- 
cott, 380. 

Root,  Secretary  Elihu,  enforcement  of 
rule  against  resident  attorneys  seek- 
ing diplomatic  status,  50 ;  on  use  of 
"United  States,"  88;  recommends 
reforms  in  consular  service,  381. 

Rules  of  Paris,  adhesion  to,  281. 

Rush,  Richard,  comments  on  presenta- 
tion audience  at  London,  64  ;  reports 
of  Parliamentary  proceedings,  111; 
subjected  to  customs  examination, 
173. 

Russell,  Lord  (  Sir  Charles ),  his  snuff- 
box, 155. 

Russell,  Jonathan,  on  peace  commis- 
sion, 193. 

Russia,  Capt.  Fox  mission  in  1866  to, 
198;  indicated  in  1797  desire  for 
treaty,  272  ;  exchange  of  ratifications 
of  treaty  with  Japan,  281 ;  minister's 
note  on  treaty  of  1824,  284  ;  declara- 
tion of  1871  as  to  Black  Sea,  299. 

Russian-Japanese  treaty,  ratifications 
exchanged  at  Washington,  281. 

Ryswick,  Congress  of,  3 ;  demand  of 
German  diplomats  at,  17;  Macaulay 
on,  18. 

Sack-vdlle-West,  Lord,  dismissal  as 
British  minister,  187  ;  member  fish- 
ery commission,  194. 

Salaries  of  envoys,  increase  of,  dis- 
cussed, 91-100. 

Sanford,  Henry,  action  at  Paris  as  to 
court  dress,  135. 

Santa  Anna,  treaty  with,  while  prisoner, 
null,  294. 

Sargent,  Mr.,  minister  to  Germany,  em- 
barrassment occasioned  to,  by  pub- 
lication of  confidential  dispatches,  117. 

Schenck,  Robert  C,  member  joint  com- 
mission, 193 ;  special  envoy  to  Buenos 
Ayres,  196. 

Schools  of  diplomacy,  established  in 
American  universities,  11. 

Schufeldt,  Commodore,  mission  to  Ko- 
rea, 197 ;  action  of  Senate  as  to  con- 
firmation, 202. 

Schurz,  Carl,  on  use  of  "  United  States," 
88. 

Scott,  Gen.  Winfield,  pacificator  of  bor- 
der troubles,  323, 337. 


400 


INDEX 


Seals,  fur,  modus  as  to,  324 ;  arbitra- 
tion at  Paris,  345. 

Secretaries,  executive  order  for  admis- 
sion of,  to  diplomatic  service,  10 ; 
duties  of,  20() ;  entitled  to  diplomatic 
immunities,  207. 

Secretary  of  State,  relation  to  ambassa- 
dorial rank,  31 ;  rank  in  cabinet,  32  ; 
may  prescribe  subjects  for  written 
communication  only  to  diplomats, 
112. 

Senate  of  the  Unit^  States,  confirma- 
tion of  envoys,  45  ;  cannot  negative 
grade  of  envoys,  46 ;  rejection  of 
Gallatin  and  Van  Buren,  47  ( See 
Confirmation  hy  Senate  ) ;  its  ratifi- 
cation of  treaties,  chapter  xiii ;  pre- 
sidents consulting  as  to  treaties,  267; 
initiating  treaties,  275 ;  amending 
treaties,  276  ;  rejecting,  277  ;  honor- 
able conduct  as  to  treaties,  287  ;  rela- 
tions to  other  compacts  than  treaties, 
chapter  xvi  ;  delegation  of  treaty- 
making  power  to  President,  312; 
effect  of  ratification  of  Hague  conven- 
tion, 315  ;  action  on  Chinese-Boxer 
protocol,  319;  on  disarmament  agree- 
ment as  to  Canada,  319;  on  arbitra- 
tion treaties,  327. 

Seward,  Secretary  W.  H.,  anecdote  as 
to  American  diplomats,  13 ;  on  use 
of  "United  States,"  88;  declined 
French  mediation,  349 ;  on  tripartite 
intervention  in  Mexico,  360. 

Sherman,  John,  report  as  to  confir- 
mation by  Senate,  203,  on  Clayton- 
Bulwer  treaty,  304 ;  on  Chinese 
exclusion  legislation,  307. 

Sickles,  Daniel,  special  envoy  to  Colum- 
bia, 196. 

Six-horse  coach  used  for  ambassadors, 
58. 

Smith,  Gold  win,  on  conduct  of  Lord 
Stratford  de  Redcliffe,  6. 

Snuff-boxes,  given  Lord  Castlereagh, 
141 ;  as  diplomatic  presents,  153 ; 
tendered  Mr.  Pinckney,  155  ;  Lord 
Russell's,  155. 

Soul^,  Pierre,  interruption  of  transit  as 
minister  through  France,  53. 

Spain,  observance  of  treaty  of  1834 
during  war,  307 ;  claims  agreement 
of  1871,  316 ;  protocol  of  1877,  318  ; 
Virginius  settlement,  320 ;  treaty  of 
1795,  provisions  for  arbitration,  332. 

Story,  Justice  Joseph,  report  of  con- 
ference of  Senate  committee  with 
President  Madison,  45 ;  on  prohibi- 


tion of  orders  and  presents  to  officials, 
149  ;  on  treaty-making  power,  i:83. 

Stowell,  Lord,  on  immunities  of  diplo- 
matic commissioners,  194. 

Stratford  de  Redcliffe,  Lord,  as  to  re- 
sponsibility for  Crimean  War,  6 ;  as 
to  criticisms  on  Congress,  110;  J. 
Q.Adams  on,  113;  hia  estimate  of 
Adams,  114;  transfer  to  St.  Peters- 
burg, 114;  on  dismissal  of  Mr.  Jack- 
son, 185. 

Sully,  French  ambassador,  his  retinue 
and  reception  in  London,  55. 

Supreme  Court  of  the  United  States,  on 
use  of  "  United  States,"  89  ;  decision 
on  ex-territorial  jurisdiction,  235  ;  on 
Senate  resolution  as  to  Spanish  treaty, 
287,  294 ;  on  individual  rights  af- 
fected by  treaty,  288  ;  on  cession  of 
Louisiana,  295 ;  on  treaty  power, 
295  ;  effect  of  war  on  treaties,  306 
effect  of  legislation  on  treaties,  307 
State  extradition,  324. 

Taylor,  Zachary,  consulted  Senate  as 
to  Nicaragua  treaties,  274. 

Termination  of   missions,  chapter  ix ; 
envoys   of  United  States   resign  on 
change  of  administration,  175  ;  com- 
missions  without   limit,    176 ;    com- 
missions  retained   by   envoys,    176; 
sovereign's  desire  for  envoy's  reten- 
tion   not    effective,   177 ;    letter   of 
recall  delivered,  177  ;  retiring  min- 
ister  should    await   successor,    178 
recall  for  cause,    179;    case    of   G 
Morris,  179;   C.  A.  Washburn,  180 
Egan,  181;    Monroe,   Motley.    182 
Moustier,  183 ;    Genet,  185  ;  Yrujo. 
185  ;  Jackson,  185  ;  Crampton,  186 
Catacazy,  West,  187  ;  Thurston,  189. 

Thurston,  Lorin  A.,  his  recall  as  min- 
ister from  Hawaii,  190. 

Traveling  time,  allowance  made  for 
diplomats  going  to  posts,  52. 

Treaties,  negotiation  and  framing  of, 
chapter  xii ;  various  kinds  of  treaties, 
243  ;  documents  having  relation  to, 
245  ;  usually  negotiated  by  secretary 
of  state,  247  ;  special  envoys  for  ne- 
gotiating, 247  ;  full  powers,  247  ; 
instructions  of  negotiators,  249  ;  lan- 
guage of,  250  ;  counterparts  of,  251 ; 
the  religious  invocations,  252 ;  they 
have  fallen  into  disuse,  259  ;  practice 
of  presents  when  made,  259 ;  their 
ratification  by  Senate,  chapter  xiii; 
President   consulting  Senate  as   to, 


INDEX 


401 


267 ;  Senate  initiating,  275 ;  Senate 
amending,  270 ;  Senate  rejecting, 
277;  considered  in  secret  session, 
279 ;  may  recall  treaties,  279 ;  ex- 
change of  ratifications,  280 ;  adhesion 
to,  281  ;  proclamation  of,  282 ;  inter- 
pretation of,  chapter  xiv  ;  notes  or 
protocols  on,  285  ;  legislation  to  carry 
into  effect,  288 ;  conflict  with  Consti- 
tution or  laws,  290 ;  rules  as  to,  292  ; 
termination  of,  chapter  xv,  war  as  to, 
305  ;  significance  of  "  agreement  " 
in  arbitration  treaties,  327  ;  treaty  of 
1794  first  provision  as  to  arbitration, 

OoZ. 

Trist,  Nicholas,  peace  commissioner  to 
Mexico,  193. 

Turkey,  unsatisfactory  relations  with, 
embarrassed  by  ambassadorial  rank, 
28-31;  decorations  and  presents  of 
Emperor  of,  to  Americans,  152 ; 
dragoman  in  embassy  at,  210;  sa- 
cred law  as  to  witnesses,  232  ;  French 
capitulation  of  1740,  257 ;  variance 
of  interpretation  of  naturalization 
treaty  of  1874,  285 ;  as  to  treaty  of 
1830,  295, 

Uniform  at  Court.      See  Dress  at  Court. 

United  States,  the  proper  use  of  singu- 
lar or  plural  verb  or  pronoun  applied 
to  phrase,  83-90. 

Ultimatum  defined,  246. 

Utrecht,  Congress  of,  3 ;  quarrel  of 
ambassador's  footman,  17. 

Van  Buren,  Martin,  non-confirmation 
as  minister  to  Great  Britain,  48 ; 
consulted  Senate  as  to  treaty  with 
Ecuador,  272. 

Vans  Murray,  W.,  commissioner  to 
France,  193. 

Vattel,  publicist,  on  ambassadorial 
representation,  107  ;  on  treaty  ratifi- 
cation, 278. 

Vienna,  Congress  of,  3 ;  fixed  rank  in 
diplomatic  service,  15, 19,  20;  United 
States  accepted  this  order,  20. 

Vindication,  practice  of,  by  returned 
envoys,  disapproved,  190 ;  Monroe, 
Cass,  190  ;  Delcasse,  190 ;  Bis- 
marck, 191 ;  Arnim,  191. 


Virginius  settlement  with  Spain,  318. 
Voltaire,  witticism,  on  diplomacy  and 
statecraft,  18. 

Waite,  M.  R.,  counsel  Geneva  arbitra- 
tion tribunal,  341. 

Walker,  R.  J.,  private  agent  to  Europe 
in  1861,201. 

Ward,  John  E.,  American  minister  to 
China,  his  refusal  to  perform  the 
kow-tow,  69.    A 

Washburn,  C.  W.,  his  dismissal  as 
minister  to  Paraguay,  180. 

Washburne,  E.  B.,  minister  at  Paris, 
service  to  Germany,  129;  German 
interference  with  his  mail,  173. 

Washing^ton,  George,  instructions  to 
diplomatic  representatives,  1,  103 ; 
went  in  person  to  confer  with  Senate, 
264. 

Webster,  Secretary  Daniel,  enlarge- 
ment of  causes  of  extradition  in 
treaty  of  1842,  78;  on  use  of  "  United 
States,"  86,  88  ;  on  salaries  of  diplo- 
mats, 96;  treaty  of  1842,  337;  on 
damages  based  on  riots,  366. 

Weed,  Thurlow,  private  agent  to  Eu- 
rope in  1861,  200. 

Westphalia,  Congress  of,  3 ;  discussion 
as  to  diplomatic  rank,  17. 

Wheaton,  Henry,  on  duties  of  Ameri- 
can ministers,  81 ;  on  detention 
of  minister's  property  for  debt, 
170. 

Whitney,  E.  B.,  on  delegating  treaty 
power  to  President,  315. 

Williams,  Attorney-General,  member 
joint  commission,  193. 

Wilson,  James,  member  of  Constitu- 
tional Convention,  on  term  "  nation," 
86. 

Wives  of  diplomats,  rule  of  some 
countries  as  to  marriage  of  foreign- 
ers, 127 ;  Von  Brandt's  marriage, 
128. 

Woolsey,  Theodore  F.,  on  use  of 
"United  States,"  88. 

Wright,  Silas,  on  use  of  "  United 
States,"  88. 

Yrujo,  Sr.,  his  recall  as  Spanish  minis- 
ter, 1S5. 


Eltctrotyped  and  printed  by  H .  O.  Houghton  <&•  Co. 
Cat/fbridgt,  Mass.,  U.S.A. 


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